Clause 57
Borders, Citizenship and Immigration Bill [Lords]
5:00 pm
Tom Brake (Carshalton and Wallington, Liberal Democrat)
I beg to move amendment 1, in clause 57, page 45, line 22, after ‘Kingdom’, insert
‘or the responsibility of the UK Government or UK agencies abroad’.
It is a pleasure to speak in favour of this straightforward but powerful, I hope, amendment, which touches on the welfare of children who are in contact with UKBA. We do not always have a particularly positive record that we can be proud of on children, as with the detention of families in detention centres. This small amendment would perhaps redress that balance and ensure that we gave greater priority to children and provided for the welfare of children in and outside the UK. I wrote down something that the Minister said earlier today. He said—this is a direct quote—that we are “effectively exporting our borders.” Clearly, that is what we are doing at entry clearance posts and juxtaposed controls, or perhaps in the course of an escorted removal. If we are exporting our borders with the acceptance and acknowledgment of other countries, can we not also ensure that the standards we apply to the welfare of children within the UK who are being looked after by UKBA, also apply to children from outside the UK who are in contact with UKBA?
This is a straightforward proposal, which is welcomed by the Refugee Council and others, and it is hard to see why the Government would not want to support it. Is there any reason for UKBA to have a different attitude to the welfare of a child who is being escorted outside the UK, from the approach to welfare issues that it would take for a child within the UK? It is straightforward.
In an earlier sitting we had an interesting debate about whether the Independent Police Complaints Commission should have any powers abroad. We asked whether it should be possible for someone to make a complaint about something that happened abroad, and for the IPCC to pick up and deal with it in this country. Currently it cannot, and I suppose a certain logic says that if suitable policing or reporting arrangements apply in another country, we should allow that country to deal with any complaints.
The Minister’s own words are that we are “exporting our borders”. We have a relationship with many countries which accept that officials of the United Kingdom are able to process things abroad. Of all the people that UKBA comes into contact with, we should be most careful about the welfare of children. It is clear that the very high standards—broadly speaking—that we have here, regrettably do not apply in a number of other countries. Therefore, we cannot assume that the local safeguarding children board, or whatever structures another country has in place to look after children, will be able to deal appropriately with the welfare of children, as that is simply not the case. In many countries there will be no safety net or local authority able to take on those responsibilities.
I hope the Minister will accept that this is a valid and well-meaning amendment about promoting the welfare of children—something that the Government recognise as a responsibility of UKBA within the UK. Surely, it is just a small extension to ensure that that responsibility also applies outside the UK. I hope the Minister will respond positively.
Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)
I want to put down some caveats. I sympathise with the motives behind the amendment, but I wonder about the practicalities. Perhaps the hon. Member for Carshalton and Wallington or the Minister will pick up on some of these points. The Minister will be aware that in this country, local authorities are essentially responsible for the welfare of children who come through the immigration system. In some cases, many of those local authorities would prefer that responsibility to be taken by UKBA, as there would be funding implications to that. I wonder about the practicalities of assigning that duty of care to the UK Government in a general sense, or to UK agencies abroad. What sort of agencies are we talking about? What criteria would have to be met for the child to become the responsibility of the UK, as opposed to the responsibility of an agency in the country in which our agency is based? In principle, if a child is in his or her own country, surely the responsibility for their care must lie in that country’s jurisdiction rather than in this country.
Tom Brake (Carshalton and Wallington, Liberal Democrat)
Perhaps to put the hon. Gentleman on the spot, does he believe that that would apply in the case of an escorted removal when a child is being transported to another country on a plane? At the moment that that plane lands, does the responsibility lie with the country where the plane has landed?
Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)
Presumably, if the child is still airside, there would be a question as to what jurisdiction they were in, but that is clearly a small example of the wider point that I assume the hon. Gentleman is making about where children come from.
Phil Woolas (Minister of State (the North West), Home Office; Oldham East and Saddleworth, Labour)
The answer is yes.
Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)
The Minister can give his own answer to the question if he likes.
There is a serious question about the guidelines that would need to be issued to UK staff based overseas. Essentially, all my caveats boil down to what would happen in practice. How would the measure be a practical way of enhancing children’s welfare? I take the point that the hon. Member for Carshalton and Wallington makes—we will have higher standards in this country than there are in some others—but he will recognise that if we made the amendment, extra pressure would be put on British authorities in other countries.
I approach the matter with a questioning mind. One cannot impugn the motivations behind the measure, but would it be a practical solution that could be operated in the real world?
Phil Woolas (Minister of State (the North West), Home Office; Oldham East and Saddleworth, Labour)
I absolutely acknowledge that the intention of the proposed amendment is good. There was a significant debate in the other place regarding the duty that is being put on by the clause.
Let me remind the Committee of the primary purpose of the duty. We are attempting to ensure that UKBA has a duty that is the same as that found in section 11 of the Children Act 2004, thereby bringing the agency in line with a number of other public bodies in the UK, so that they can share information and concerns about children. The agencies that also work overseas do not have that duty placed on them overseas, partly for the reasons the hon. Member for Ashford gave. I recognise that that is not an argument in and of itself because the hon. Member for Carshalton and Wallington will say, “Well, they should have the duty as well,” which I understand.
The application of the duty that clause 57 places with regard to children overseas was also the subject of a very good quality debate in the other place. Our point of view then, as now, is that the duty is based on the systems in place in the UK and that it cannot be transplanted to other countries, which may have entirely different arrangements. Moreover, it is likely that other countries would consider it an interference in their jurisdiction if UKBA were to seek to assume the level of responsibility for local children as it would for children in the UK.
A useful test in this area of policy is to imagine the reaction of one’s constituents if things were the other way around—if an agent from another country were to take such an attitude in the UK. To reassure the hon. Member for Carshalton and Wallington, I remind him that the UK does not and cannot deport children—he referred to escorts and deportation—to countries where it is deemed unsafe to do so. We are not allowed to do that. We believe that our formal responsibilities under the duty should be confined to children who are in the United Kingdom.
I hope to reassure the hon. Member for Carshalton and Wallington, because I heard what he said about the Refugee Council. We—the taxpayer rather—fund that body to the tune of around £17 million a year to do that work. Sometimes, when I read the newspapers, perhaps I bite my tongue, but that is quite right in a democracy—the council does a great job and we work with it on the Gateway project very effectively. To reassure the hon. Gentleman, the United Nations convention on the rights of the child also limits the responsibility of states parties to children within their jurisdiction. That is something that we take seriously.
My second point is to reassure the Committee that none of that means that we do not take appropriate action to ensure that our officials overseas take appropriate action with regard to children. Indeed, the statutory guidance that accompanies the duty sets out the expectation that UKBA staff overseas will make referrals to overseas authorities where local or other international agreements permit or require. In addition, our staff going to work overseas receive training in children’s issues as part of their induction. There is much voluntary co-operation. As it stands, the practical points made by the hon. Member for Ashford are pertinent.
As the amendment stands, it would introduce an undesirable lack of clarity into the work of the agency, since it would be unclear which children and when would be the responsibility of the UK Government, when UKBA would be responsible for children outside the UK, or which UK agencies were being referred to. Take, for example, the juxtaposed controls in France, which are covered by French law, subject to treaty agreement; we believe that the best way of achieving the duty upon our staff there is through the implementation of the code of practice. If I were to go to France and tell the French that our law was to overrule their law, they would very quickly tell me where to put my juxtaposed controls—if I can put it in English and not in French.
There are some practical difficulties. Similarly, consider an overseas posting into which a child, accompanied or otherwise, may be sent to apply for a visa. Do our staff have a duty of care? There are practical arrangements that could cause difficulties.
Tom Brake (Carshalton and Wallington, Liberal Democrat)
May I put a concrete example to the Minister? If he is able to say, “Well, this couldn’t possibly happen”, I shall at least be reassured on that point. The view put forward by the Immigration Law Practitioners’ Association is that the failure to promote the welfare of children abroad may have results as harmful to the child as any failure in respect of the child in the UK, including granting a visa enabling a child to be trafficked to or via the UK, or handing a lone child over to the authorities in another country that has not made arrangements for the child’s welfare. Is the Minister saying that those circumstances could never arise because of the safeguards that are currently in place?
Phil Woolas (Minister of State (the North West), Home Office; Oldham East and Saddleworth, Labour)
It is a difficult point. I take that very seriously. What the hon. Gentleman is asking, in effect, is whether one of our officials could be misled or duped in some way into being party to the trafficking of a child and whether there should be an obligation set out in statute that that should not be the case. My answer would be twofold. First, if our current practices did not cover that, I think that hon. Members would want to know why. If the case was that we did not currently have procedures in place to check that, then that would be the difficulty. If a child was brought in legitimately and then abandoned, as happens from time to time, would the member of staff be subject to legal action rather than disciplinary action because he or she had been duped, and what would the consequence be?
The difficulty, therefore, is again one of practical arrangement and of intent. Also, in the situation that the hon. Gentleman described—I can think of others, such as escorting—the member of staff would have an obligation, which stems in part from that duty through the statutory code, to refer it to the relevant authority in the country in which he or she was based.
For those reasons, which I am satisfied are good ones, we do not want the amendment on the statute book, given those reassurances on the obligations that we place on staff. I think that the overwhelming argument is that conflict with the laws and practices—particularly the laws—of overseas countries would render the amendment difficult. There has been no objection, I think, to the purpose of the clause itself, so I will not speak on that point.
Tom Brake (Carshalton and Wallington, Liberal Democrat)
I have listened carefully to what the Minister and the Conservative spokesman have said. Clearly, significant practical issues would arise if any attempt were made to introduce the amendment. I hope that the Minister can confirm that the scenario outlined cannot happen in practice because of the safeguards that are in place; he might be able to write to me on the subject.
I acknowledge the significant practical issues that might arise, so I beg to ask leave to withdraw the amendment.
Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)
I beg to move amendment 60, in clause 57, page 46, line 3, at end insert—
‘(5A) The Secretary of State shall collect and publish statistics regarding detention of children during the relevant period, on a regular basis.’.
I hope that I can restore friendly relations along the Bench with the hon. Member for Carshalton and Wallington, as my amendment is identical to one tabled in another place by his noble Friend Lord Avebury and supported by my noble Friend Lady Hanham. The purpose of the amendment is to gain further assurances from the Government that they will collect and publish data relating to the detention of children under Immigration Act powers and, we hope, commit to a timetable for doing so. We have had various discussions about the amount and quality of statistical information available in the field, and I am sure that even the Minister would admit that things are not perfect, to put it no higher.
The amendment would make a small step forward in one of the most sensitive areas—the detention of children. The Minister will be aware that the Refugee Children’s Consortium, a joint body of organisations and charities that deal with children, such as Save the Children, the Refugee Council and many others, is concerned about the limited scope and poor quality of data kept by UKBA and its contractors on the children that it detains, both those detained with their parents and separated children whose age, and disputes over whose age, are essential to deciding how they are treated.
The Refugee Children’s Council contends—I have some sympathy with this contention—that without such information, it is not possible for UKBA to meet its duty under the code of practice or the new duty that we are discussing under the clause. If it does not have comprehensive and accurate information, UKBA is in no position to monitor how its policies are affecting children and any underlying trends. Similarly, the lack of information impedes the Government’s ability to comply with their reporting obligations under article 44.2 of the UN convention on the rights of the child, which requires that:
“Reports shall also contain sufficient information to provide the Committee with a comprehensive understanding of the implementation of the Convention in the country concerned.”
The collection, presentation and publication of such information is now imperative in light of the welcome recent withdrawal of the Government’s reservation on immigration and nationality matters with regard to the convention on the rights of the child.
At the moment we get a limited snapshot in the quarterly statistics, which are aggregated into the annual statistics. We get a snapshot of the children who are detained with their families. The key is that it is not possible to track cohorts or to know how many children were detained over a given period, the cumulative length or outcome of their detention, the children’s nationality or where or at what point in a child’s asylum claim they were detained. The most recent figures were published on 20 May and they demonstrate the paucity of information that is currently available to us. They show that for the first quarter of 2009, 30 people detained solely under Immigration Act powers were recorded as less than 18 years old. Twenty of them had been in detention for less than 29 days, five for between 29 days and two months, and the remaining five for between two and three months.
During her inspection of Yarl’s Wood, the chief inspector of prisons obtained more illuminating figures that seemed to justify the concerns, but she highlighted alarming inaccuracies in the data. I have personal experience of that; it has been some time since I have been inside Yarl’s Wood, but last time I was there I looked at the data collected on how many children were detained for more than 28 days. When I asked in a parliamentary question for a regularised version of the data, I was told that it was not collected, but I have seen it—I know that it is collected. I know that it is at Yarl’s Wood, so to be told that the data were not available seemed questionable.
Given the Government’s view that the detention of families with children whose asylum claims have failed and whose appeal rights have been exhausted is necessary for their removal from the UK, statistical information should be made available to allow scrutiny of the Government’s policy of detaining families. Data should show the number of families removed from the UK after their detention and the number of families temporarily released or with other outcomes after their detention. In that context, like the Minister but unlike the Refugee Children’s Consortium, I accept that in some cases detention of families with children may be necessary at the moment. Given that at present we do not have adequate alternatives to detention, I think it is important that such facilities are available. None the less, it still seems necessary that we should make available proper information about what is happening to those families, and particularly their children.
In another place it was stated that without comprehensive information it is impossible to determine whether or not the Government’s stated policy—that detention must be used sparingly and for the shortest period necessary—is being adhered to. On Third Reading in the other place, the Minister made a commitment to the House that UKBA would continue to review and update how it collates and updates its statistics and guidance. He said:
“We can do better and we are putting in a lot of effort to do better to underpin the new duty to safeguard and promote the welfare of all the children with whom UKBA comes into contact. I have asked the agency to set up a round-table discussion involving representatives of the major children’s charities”.—[Official Report, House of Lords, 22 April 2009; Vol. 709, c. 1539.]
That is clearly a step forward. We now need, and I hope to gain from the Minister today, a timetable for producing the comprehensive cohort data that we, the children’s charities, and the wider public need to assess what is happening: the total length and outcome of detention, the children’s nationality and at what point in their asylum claim they were detained. It is unacceptable that such data are not routinely gathered either by immigration removal centres, if the Minister decides that they are not—though, having seen the data, I have my doubts—or centrally by UKBA.
We also need data in one other area—the number of age-disputed young people who are held in detention and the number of disputed cases subsequently found to be children. Once again that is a central point about transparency and accountability. It is the UKBA’s policy,
“not to detain [unaccompanied] children other than in the most exceptional circumstances”.
However, UKBA says:
“Where an applicant claims to be a child but their appearance very strongly suggests that they are significantly over 18 years of age, the applicant should be treated as an adult until such time as credible documentary or other persuasive evidence such as a full ‘Merton-compliant’ age assessment by Social Services is produced which demonstrates that they are the age claimed.”
All that is fine, but we do not know how many have that test put to them nor how many are then found to be under 18. If statistics are not collected on the number of such cases, the number later found to be children and for how long they are in detention, we do not believe UKBA can itself know or be satisfactorily held to account by anyone else on the effectiveness of its policy. The central purpose of the amendment is that it would require the Secretary of State to collect and publish the data.
Not just Members on the Opposition Benches, but very many people who are concerned with the detention of children, think that without the provision of that essential statistical information it is impossible to know how effective Government policy is in this area. If it is impossible to know, suspicions will flourish. I am sure everyone is uneasy about the detention of children, possibly for long periods, and to do that under this cloak of secrecy makes it all the worse. It certainly damages the reputation of this country around the world. I hope the Minister will take the amendment very seriously.
Tom Brake (Carshalton and Wallington, Liberal Democrat)
I am not easily offended, so I will be happy to support the amendment. It rightly seeks to ensure that we have much better quality data about what is happening to children within the system. It would be helpful if the statistics were to cover, for instance, escorted children abroad and that might address some of the issues I raised earlier. It would enable us to have a better picture of how those children are cared for. It is a sensible proposal, although it could have been more specific regarding the frequency of publishing the statistics—perhaps on a monthly basis—and the sort of information that it might be useful to provide in regular reports.
The hon. Member for Ashford raised an interesting point about children who are considered to look over 18 and therefore are treated as adults. I hope the betting industry is not used as an example, as 95 per cent. of the test purchases made in betting shops by a 17-year-old were successful. A much greater number of children may be falling foul of the looking-18 rule than we know about. It would be useful to have a feel for how many children are considered to look 18 when many may be much younger. I hope the Minister will be able to provide us with a positive response to a sensible proposal.
Phil Woolas (Minister of State (the North West), Home Office; Oldham East and Saddleworth, Labour)
I have thought about the matter, and the hon. Gentlemen are right. We should publish statistics based on the average length of stay, as well as the ones we currently publish that give a snapshot. It is common sense; it is decent. I think the political criticism that we get as a Government is ridiculous. We should publish the information and I shall explain in a moment what we intend to do. In addition, publishing the statistics will provide a better explanation of policy.
On the point just made by the hon. Member for Carshalton and Wallington about children, the statistics will show that lots people aged over 18 claim to be children—I think that someone aged 31 recently tried to do so—and there is a dispute among professionals about how to ascertain a child’s age. Some of the children that I have seen in detention look pretty old and are pretty big and strong, but I make that point just to put the issue in context.
Let me give the reassurances that the Committee wants. I think that hon. Members are speaking as both constituency representatives and as spokespeople for their parties. The issue was debated in the other place where we gave some commitments, and I have of course looked at it since then. I am glad that the amendment has been tabled as it draws attention to the need for more accurate and up-to-date recording of data on the detention of children, and it also informs the debate.
Any Government must justify the detention of children, and I think that there are safeguards in the Bill. There is justification for the argument that the legal system and, sometimes, legal advice prolong the detention. We have had a debate about judicial reviews, and the detention of children at Yarl’s Wood is meant to be the final stage in the process, but sometimes delays are caused that are outside UKBA’s control. The matter is in everybody’s interest, as well as in the interest of accountability.
We share the real concern that statistics on children in detention are not currently published in a way that enables the length of detention to be clearly identified. That is what the House, the interested parties and, I think, the public are looking for. The problem has arisen because we have not been confident that the data held centrally are robust enough. The Government have an obligation to produce published official statistics, either through the Office for National Statistics or through our own Home Office statisticians, who are themselves independent from Ministers. As the Committee knows, I have sometimes found that very frustrating and I have justified my point of view to the Select Committee.
For published national statistics, there is an inescapable need to ensure that the standards set down by the UK Statistics Authority are met. The standards are rigorous, and are designed to create confidence that the information presented is accurate and objective. For example, if a family is taken to Yarl’s Wood, then taken out, and then put back in again, we have to get the statistics right, but I am not hiding behind that point, because the issue can be addressed.
The hon. Member for Ashford asked why the Yarl’s Wood data are not published. I asked the same question following my visit to Yarl’s Wood, and there is a good reason: we are now quite rightly strict about having only one case file for each case. The legacy cases that we often talk about are cases and not individuals, so a legacy case of 150,000 probably relates to around 100,000 people, even though the number of cases is 150,000, so misrepresentations can be made. In the case of Yarl’s Wood, that means that whenever anyone makes a decision involving a child they have all the previous information available to them so that the consequences of their decisions are understood.
However, I do not wish to over-egg the pudding; the Home Office statisticians have already commenced work on the project to develop statistics on children in detention, and they plan to publish additional statistical analyses on the number of children in detention—by age, gender, nationality and place of initial detention, which is something that I think the hon. Gentleman has previously raised—and the total number of children leaving detention, so that we can see the full picture. The statistics will appear in the August 2009 issue of the quarterly “Control of Immigration: Statistics” statistical bulletin, a document read more widely than its name implies.
The plans were discussed with relevant voluntary organisations on 21 May and the resulting statistics will be published, as I have said, in future statistical bulletins. The plans include expanding the details about those leaving detention, to show the time periods involved and the reason for leaving, whether that be removal to another country or another reason. I hope that I have satisfied the Committee.
David Hamilton (Midlothian, Labour)
Will my hon. Friend add to those figures the number of under-18s in the same family? That would be relevant. There are cases involving three or four people from the same family.
Phil Woolas (Minister of State (the North West), Home Office; Oldham East and Saddleworth, Labour)
If that figure is not there, it should be. I can see exactly the point of that. If we look at the case, the children are detained because of the parent. The alternative policy, which as my hon. Friend knows we have tried elsewhere, is to separate the child from the parent, which, in practice, is normally the mother. That is equally or perhaps more undesirable, certainly from the child’s point of view. That is implicit in what I have said, and so I accept that point of view.
I will not put forward arguments about the drafting of the clause and so on. I make those commitments to the Committee and will repeat them on Report if that is desirable, and we can move on and have a proper debate.
Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)
May I clear up what the process is? Is the Minister saying that he will table an amendment on Report that would have that effect and that he would therefore like me to withdraw the amendment?
Phil Woolas (Minister of State (the North West), Home Office; Oldham East and Saddleworth, Labour)
I believe that the desirable way forward is for the Committee to accept my assurances that we will do that. It is not appropriate for such a specific expectation to be in the Bill. I was simply asking the hon. Gentleman to withdraw his amendment in the light of my assurances. I do not want him, other Committee members or you, Mr Gale, to think that this is just a way of getting over an awkward amendment; it is not. The amendment is not awkward, it is something that we are committed to. I commit to repeating that commitment on Report, by which time I will have further information on the publication dates and the plans.
Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)
I am grateful for the Minister’s positive response. In a sense, there is nothing more to say. I am glad that the Government have done that. It is overdue and welcome, and we are pleased to have achieved it. I can assure the Minister that the quarterly statistics are read avidly by some of us for many days after they come out because they are full of exciting illumination. On the basis of his assurance, I beg to ask leave to withdraw the amendment.