Illegal Migration Bill

Robert Buckland Excerpts

Committee stage
Tuesday 28th March 2023 Commons Chamber

The Children Act 1989 is clear that local authorities in England have a legal duty to safeguard and promote the welfare of children who are in need within their area, which begins as soon as the child is found in the local authority area. This Act applies to all children equally in the United Kingdom regardless of their nationality, their origins, their ethnicity or their immigration status. This has been a grey area, as we have found on the Home Affairs Committee when we have interviewed Ministers previously. Where it has gone wrong is over the placing of children arriving through Dover in certain hotels. There have been cases where Home Office staff have not informed the local authority, which is the legal body in place of the parent, but they have actually placed children there. There is some confusion among Home Office officials over whether it is the Home Office or the local authority that has prime responsibility for deciding whether they are refugees coming here irregularly through Dover, or whether they are coming here on a resettlement scheme through Afghanistan, for example. We just need greater clarity on that. I am afraid that, with the changes here, it does not aid clarity.

[Sir Robert Buckland (South Swindon) (Con)]

I am grateful to my hon. Friend for giving way. In his point about the interaction with the Children Act and Home Office responsibility, this is where we get to the nub of the problem. The characterisation of this debate has become extremely unfortunate, especially when we talk about issues such as detention, which I am sure that, in practice, the Government do not mean. This is really an issue of safeguarding first and foremost and of identifying genuine cases that require all the safeguarding measures that are underpinned by the Children Act. Does he agree that it is a shame, to say the least, that we are not focusing on children in that context, rather than in the context of detention, internment or whatever we want to call it? That language is not helpful.

[Tim Loughton]

I shall come on to detention in a minute, but I entirely agree with the principle of the point that my right hon. Friend is making, which is that, whatever we think about our immigration and asylum system, a child should be treated no differently, however he or she arrived in this country, than one who was born here and is in the care of parents or whatever. There are times in the Bill where it is unclear that that is the case.

All these terms need to be subject to the child welfare prioritisation in the Children Act 1989 and also have regard to the 1989 UN convention on the rights of the child of 1989. Under article 3.1, it says that

“the best interests of the child shall be a primary consideration”.

That has been upheld in UK legislation, not least in the Borders, Citizenship and Immigration Act 2009.

In giving the Home Secretary the power to remove unaccompanied children when they reach the age of 18—and potentially before—the Bill could see a child arriving alone in the UK aged 10, for example, having fled war and persecution, and be allowed to integrate into UK society, develop friendships and attend school only to be forcibly removed from the UK as soon as they turn 18. There are concerns that a child approaching 18, a 17 and three quarters-year-old, could be encouraged to go under the radar and go underground for fear of that knock on the door when they reach 18. We need to treat that sensitively, because otherwise we are creating a greater problem and putting some of those children at greater risk than they might have been. A decade ago, the majority of unaccompanied children were granted temporary leave to remain, rather than refugee status, until they turned 18, and we know that the fear of removal forced many of those children to go underground and go missing, at extreme risk of exploitation.

My amendment 139 inserts a fifth condition in the Bill that must be met on the duty of the Home Secretary to remove someone from the United Kingdom. Amendment 140 details that the additional fifth consideration is that the person to be removed is either over 18 or a minor in the care of an adult, typically a family member. That would have the effect of ensuring that the Bill does not capture unaccompanied children. Amendments 141 and 142 are consequential amendments, due to the rewording of clauses 3 and 7. Amendment 141 removes subsections 3(1) to 3(4), and the anomalies in subsections (1) and (2) that still give the Home Secretary unrestricted powers.

Now, Ministers—[Interruption.] I am not sure if those on the Front Bench want to listen to this, Sir Roger; it is a little difficult to try to make a speech with people having conversations right in front of me. Ministers claim that there are exceptional circumstances only in which children would be removed from the United Kingdom, and have given examples of those exceptional circumstances, such as to reunite a child with family overseas. Okay—but a child who is to be reunited with family overseas can leave the UK of his or her own accord, or subject to the ruling of a judge, in the same way as we would release a child from care into adoption, for example. I do not see that as a necessary exceptional circumstance.

If the Government are really convinced that there are exceptional circumstances where that needs to be done, there should be more detail on the Bill, or at least explanation in the explanatory notes, because there is none. As things stand, the Home Secretary has the power to remove any child, at her whim, for reasons not specified in this Bill. That is a concern. If the Government have good reason for that, we deserve an explanation of those reasons, and it is for this House to judge on how credible and necessary those reasons are.

Under the amendments, children who arrive in the UK on their own and seek asylum would continue to have their asylum claims heard here, rather than being left in limbo until they reached 18 when, under the Bill, they would face detention and then removal. The amendments do not mean that every child who arrives here on their own will go on to get permission to stay. Instead, they mean that the Home Office must process their claims and, crucially, treat them as children rather than punishing them.

Amendments 143 to 145 deal with the issue of detentions and, along with the amendments I have already described, maintain the safeguards that were put in place under Conservative-led Governments to protect children from the harms of immigration detention. In 2009, more than 1,000 children were detained in immigration removal centres but, following changes made by the then Home Secretary, my right hon. Friend the Member for Maidenhead, over the next decade the average was 132 children per year.

What was more, those children could not be detained for longer than 24 hours if they were unaccompanied, or 72 hours if they were with their family members, extendable to a week if a Minister agreed it was necessary. We then legislated for those limits in the Immigration Act 2014, under a Conservative-led Government. Amendments 143 and 145 ensure that those safeguards continue to apply.

I am not asking for a change in the law; I am just asking that the safeguards that were deemed to be sensible and necessary back in 2014 still apply to the same sort of vulnerable children. They would prevent unaccompanied children from being locked up for more than 24 hours. Amendment 145 would ensure that children who were with their family members could still only be detained for a week at the very most and, when they were, that it would be in specific pre-departure accommodation, rather than anywhere the Home Secretary might wish, as the Bill envisages.

Under clause 11, the Home Secretary has wide powers to detain anyone covered by the four conditions in clause 2, which, without my earlier amendment, still includes unaccompanied children. There is no time limit for how long a child can be detained. That amounts effectively to indefinite detention of children of any age anywhere that the Home Secretary considers it appropriate. Under clause 12, the Home Secretary will have a significantly expanded power to decide what a reasonable length of detention is. It is all subject to the definition of what is reasonably necessary and severely restricts court scrutiny of whether that is reasonable or not. Surely that cannot be right for children. I am not seeking to challenge the increased restrictions on adults, but surely we are not going to throw all that out of the window—particularly after all the controversy on how we age-appropriately detain children who are already in this country—by adultifying migrant children, and some very vulnerable children at that.

There is also a practical consideration. If everyone who crossed the channel last year had been detained for 28 days, on 4 September 2022, no fewer than 9,161 people, including children, would have been detained. That amounts to four times the current detention capacity available in the United Kingdom. Where do the Government intend physically to place them—especially minors who need to be in age-appropriate accommodation?

I am also concerned about how the four Hardial Singh principles from 1983 apply to this part of the Bill. Those principles are that a person may be detained only for a period that is reasonable in all the circumstances, and that, if it becomes apparent that the Home Secretary will not be able to effect removal or deportation within a reasonable period, she should not seek to exercise the power of detention. The Government have to make up their mind about the grounds on which they think they need to detain children. Again, I understand the sensitivities—people claiming to be children may later turn out not to be and may abscond—but the Government need to have a clear idea about what they will do in a short space of time to justify detention when those people arrive. We do not have that level of detail or clarity in the Bill, so it is entirely incumbent on the Minister to give assurances to the Committee that children will not be disadvantaged in that way.

Amendment 143 would remove the provision enabling a person “of any age” to be

“detained in any place that the Secretary of State considers appropriate”,

and would reapply the existing statutory time and location restrictions on the detention of unaccompanied children. That was good enough in 2014; I do not think that the way we should regard and treat vulnerable children has changed so that we need to change the law through the Bill.

Amendment 145 would remove the provisions that disapply the existing statutory time and location restrictions on the detention of children and their families. I do not think that unreasonable, but if the Government want to take issue with me, it is incumbent on them to say why they want to make the changes. I have gone along with most of the rest of the Bill. I have given the Government the benefit of the doubt on what they are going to do, on the detail that they will provide, and on the timing of safe and legal routes, but we need serious assurances by Report, and, I hope, some good signage from the Minister when he gets to his feet shortly, on why law on protections that children have been entitled to—safeguards that we have been proud to give them—needs to be changed in the way that the Government are proposing.

We all want to do the right thing by vulnerable children. Most of us would like to see safe and legal routes that, as I said yesterday, involve something equivalent to a Dubs II scheme, whereby genuinely unaccompanied minors in places of danger are brought to and given safe haven in the United Kingdom. I want to continue in that tradition. I want to ensure that we are offering safe passage and safe haven to genuinely vulnerable children. I do not want them to be penalised by the wording of the Bill in the way that they could be. I am happy to take assurances, but if I do not get them by Report, I do not think that I will be alone in wanting to press various amendments to force those assurances into the Bill.