Amendment 34

Safety of Rwanda (Asylum and Immigration) Bill - Report (2nd Day) – in the House of Lords at 4:40 pm on 6 March 2024.

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Baroness Lister of Burtersett:

Moved by Baroness Lister of Burtersett

34: After Clause 4, insert the following new Clause—“Section 57 of the Illegal Migration Act 2023Section 57 of the Illegal Migration Act 2023 (decisions relating to a person’s age) does not apply in relation to removals to the Republic of Rwanda.”Member's explanatory statementThis amendment disapplies section 57 of the Illegal Migration Act 2023 in relation to removals to the Republic of Rwanda, to restore the ability of domestic courts and tribunals to fully consider suspensive judicial review claims regarding removal decisions taken on the basis of age assessments of unaccompanied children, given that the Rwanda Treaty “does not cover unaccompanied children”.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

My Lords, I rise to move Amendment 34, in my name and that of my noble friend Lord Dubs and with the welcome support of the right reverend Prelate the Bishop of Chelmsford and the noble Baroness, Lady Neuberger. Worded slightly differently to those tabled in Committee in relation to removals to Rwanda, the amendment would ensure that any unaccompanied child wrongly assessed as an adult could challenge their assessment in domestic courts and tribunals from within the UK and could make that challenge on the basis of the facts and not just the law. In other words, we want to minimise the risk of any unaccompanied child being sent to Rwanda, which the treaty supposedly rules out but acknowledges might happen because they have been wrongly deemed to be an adult. I am grateful to ILPA, the Refugee and Migrant Children’s Consortium and RAMP, of which I am an associate, for their help.

This amendment is about ensuring the best interests of the child, in line with our duties under the UN Convention on the Rights of the Child as translated into UK immigration law and strongly advocated by the Children’s Commissioner. In Committee, a number of noble Lords detailed the evidence of the significant number of child asylum seekers wrongly assessed as adults, which I will not repeat. However, I note that just last week a study by the Centre for Criminology at the University of Oxford revealed that child asylum seekers with ongoing age disputes, under the Nationality and Borders Act 2022, were arrested, charged and convicted as adults and ended up in adult prisons at serious and obvious risk of harm. This is shocking.

The Minister failed to engage seriously with the evidence presented in Committee of frequent wrongful age assessment and of how the supposed safeguards he has now outlined three times already exist and simply are not working. Instead, he—and in some cases, his colleagues—tried to argue either that the amendment was unnecessary, which I will come to, or that it was harmful because it would act as an incentive to adults to represent themselves as children and would undermine the Bill’s supposed deterrent effect. Well, the deterrent argument was disposed of in Committee by the noble Lord, Lord Kerr, and the noble Baroness, Lady Brinton. I cited from the impact assessment for the Illegal Migration Bill that

“The academic consensus is that there is little to no evidence” of immigration policies having a deterrent effect.

The incentive argument ignores the permission stage that was built into the judicial review process to weed out weak, frivolous or unmeritorious claims. Ultimately, if an asylum seeker is found to be an adult, they can then be removed, but first they will have been through a proper, thorough age assessment process involving qualified and experienced social workers as well as due legal process, which allows for consideration of the factual and legal correctness of the age assessment.

That brings me to why this amendment is so necessary. Without it, a child can be sent to Rwanda as an adult on the basis of a short visual assessment by two immigration officers, who are now defined in law as a relevant authority for age assessment purposes. This is despite the Home Office’s own advice that physical appearance and demeanour represent

“a notoriously unreliable basis for assessment of chronological age”.

The much-vaunted scientific methods, prayed in aid in Committee, do not even come into play if the age is decided on the basis of immigration officers’ visual assessment.

It was then argued that there was nothing wrong with a child having to challenge an age assessment from Rwanda. I am sorry, but there is everything wrong with that. It will be difficult for a probably traumatised child to make their case virtually—and it will have to be purely on legal grounds—and to access suitable legal support and representation. During that time, they will be placed in adult accommodation, which could be unsafe. Even if they are successful, there is the unedifying prospect of them being sent back to the UK as objects in a cruel game of pass the parcel. To quote the noble Baroness, Lady Mobarik:

“Surely, flights returning traumatised children to the UK from Rwanda are not an image that the UK Government, the Rwandan Government or the public wish to see”.—[Official Report, 19/2/24; col. 429.]

Such an image would shame us, and we have a duty to safeguard the best interests and welfare of children by ensuring that they are not wrongly sent to Rwanda as adults.

I hope, therefore, that noble Lords from all Benches will support this amendment. I beg to move.

Photo of Lord Dubs Lord Dubs Labour 4:45, 6 March 2024

My Lords, I would like to endorse the arguments used by my noble friend Lady Lister and to fully support this amendment. We all know that child assessments are difficult, and they can be traumatic for the children concerned. I know of an example where a girl, who was quite sensible and coherent, was being interviewed, and then, when she left the interview, she was traumatised, deeply upset and it was a very distressing experience. It will be even more distressing if so much more hangs on the outcome.

Officials can get it wrong; it is difficult to assess the age of children, and this modest amendment simply seeks to provide a safeguard against getting it wrong. Yes, the Minister can say that if we get it wrong, the child can be brought back from Rwanda—what a terrible thing to subject a child to. Asylum-seeking children are among the most vulnerable of all asylum seekers, and I hope the House will support the amendment.

Photo of The Bishop of Chelmsford The Bishop of Chelmsford Bishop

My Lords, I rise also to support Amendment 34. I will keep my comments brief because I fully support the statements from the noble Baroness, Lady Lister, and the noble Lord, Lord Dubs. But please do not mistake my brevity with the level of importance that should be attached to this issue. Safeguarding is not some burdensome requirement but a moral and legal imperative. It is for this reason that I repeat the request that I made in Committee for a child’s rights impact assessment to be published.

It is welcome that the Government have excluded unaccompanied children from the Rwandan partnership, but to safeguard potential children effectively, this commitment must be more than a mere intention; it must be operationally put into practice. This amendment would help mitigate the risk of a person being sent erroneously—when they are, in fact, a child—by sensibly awaiting the result of any age assessment challenge before their removal. When it comes to a child, we cannot allow harm to be addressed retrospectively, as surely it is the role of any Government to prevent harm, regardless of the immigration objective. Trauma, as we have heard, simply cannot be remedied.

The Minister has shared that the Home Office will treat an individual claiming to be a child as an adult, without conducting further inquiries, only if two officers have separately determined that the individual’s appearance and demeanour strongly suggest that they are significantly over the age of 18. But practice to date shows that this is no safeguard at all, because it has not prevented hundreds of children from being incorrectly assessed as adults.

I also want to add that the hotels reinspection report by the Independent Chief Inspector of Borders and Immigration, finally published last week, states,

“there has been no assessment of the collective needs of the children”.

That is traumatised unaccompanied children whom the Home Office has placed in hotels. This disturbing finding does not provide any reassurance that the Home Office is equipped to ensure children are protected through the age assessment process.

Therefore, given that errors have been made in the age verification process and children have been subjected to unsafe adult environments as a result, can I ask the Minister to agree today to review the Home Office’s age assessment guidance, in consultation with stakeholders, in light of the new risks posed by the Rwandan removals? Will he also be willing to meet with the signatories of the amendments in this group to discuss this matter?

Finally, the golden rule, “Do to others as you would have them do to you”, could easily be rephrased for this context into the question, “Would you consent to this course of action for your own child or grandchild?” I do not believe that there is anyone among us who would. For this reason, I pray that the Government consider the issues raised today with the consideration that every child deserves.

Photo of Baroness Neuberger Baroness Neuberger Crossbench

My Lords, I rise very briefly to support the amendment in the name of the noble Baroness, Lady Lister of Burtersett, the noble Lord, Lord Dubs, and the right reverend Prelate the Bishop of Chelmsford.

I wholly agree, and I particularly want to echo what the right reverend Prelate said. Would you allow this to happen to your child or grandchild? The answer around this Chamber will be “no”—therefore it should be our answer.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

My Lords, I also support Amendment 34. Several years ago, I was invited by the charity Safe Passage to a drop-in centre of young people who were migrants. I talked to two young Afghans, both of whom were known to be under 18. One had a moustache and the other had a beard. How on earth could an assessment be made, if they did not have any papers, that they were not over 18? There are real problems with some countries where the children—particularly the boys—mature very quickly. That is the sort of problem that is not being met by the Bill.

Photo of Baroness Brinton Baroness Brinton Liberal Democrat

My Lords, I tabled Amendment 35 in this group, which is broadly similar to Amendment 34 in that it is concerned with relying on age assessments of children, and those who end up in Rwanda—even though the Bill claims that they will not end up in Rwanda.

I thank the Minister for his letter, which I received by email just before Report started on Monday. I did not think that I needed to check with the other people I was told it would be cc’d to, but a large number of them have not received it. I wonder whether the Minister would mind forwarding it on to them, even though they are all named.

I agree with everything that has been said by the previous speakers, and from these Benches we will support the noble Baroness, Lady Lister, if she wishes to test the opinion of the House.

Regarding the letter about age assessment, I note that the SI for immigration age assessments went through on the 9 January and came into force on the 10 January. I also note that the Home Office has not let launched the process but is beginning to plan how to do so. I asked my question because the detailed report by the specialist committee, the AESAC, was always concerned that there is no infallible method for gauging age—and the letter from the Minister says that the AESAC acknowledges that

“there is no infallible method for either biological or social-worker led age assessment”, and that

“the committee acknowledge that there is uncertainty in the data used to predict the maturation points of the teeth and bones particularly”.

So, despite three pages of trying to persuade me that age assessment is okay, the principal concerns of this specialist committee are that it is not something that can be relied on scientifically.

On that basis, I hope that the noble Baroness, Lady Lister, will test the opinion of the House later.

Photo of Baroness Lawlor Baroness Lawlor Conservative

My Lords, I oppose this group of amendments on two grounds. I too want to promote the best interests of the child, but it is not in the interests of the child to be sent on dangerous journeys by land and sea, and in small boats, or to be removed from the care of family, relatives, friends, and a familiar home, to a distant country, to be brought up in care by strangers, where public authorities are stretched to the limit looking after their own children. I hope that the deterrent effect will be taken seriously by parents contemplating sending young children.

Many of the children are discovered, after scientific age assessment, not to be minors. I will not discuss the findings, and there are many different views about the validity of age assessments in this country. But I will take an impartial view from a neighbouring G7 country: that age determination tests have been used and have revealed that many who claim in a sample—I think one of the samples was for 2019—were not so. I draw attention to the analysis of age based on bone age, where radio- graphical evidence suggested that 55% of those claiming to be minors were over the age of 18. In fact, the average age of that 55% was found to be 29.

So, for two reasons, I oppose any change to the Bill, which will weaken the deterrent effect, as these amendments would. First, it is not in the interests of the child to be removed from their family, and not in the interests of the parents. I agree that nobody in this Chamber would probably contemplate doing it, and I do not think we should encourage parents overseas to contemplate doing it. Secondly, without tough conditions on age assessment, people might be encouraged to make false claims.

Photo of Lord Lilley Lord Lilley Conservative

The noble Baroness, Lady Lawlor, makes an important point that provokes in me a question. I understand why the right reverend Prelate the Bishop of Chelmsford and others—all of us, I hope—have the interests of children at heart. I answer her question, “Would we send our child to Rwanda?” by asking her, “Would she send a child in a boat from France, a safe country, to the United Kingdom?” I hope she will answer that before the end of this section. I do not think she would.

In this Bill, we are trying to deter them from coming. I understand the collective view of the Bench of Bishops is that we should not deter but prevent them; we should make prevention—the actions taken by the French police force, the interruption of the people smugglers and so on—effective. If that is the case, will she confirm that it is the policy of the bishops to stop any children getting to this country? If prevention is made effective, they will not be able to—and nor will gay people or pregnant women or the other groups we are concerned about. They will all be prevented. Is that the view she is espousing?

Photo of The Bishop of Chelmsford The Bishop of Chelmsford Bishop

My Lords, I will rise just to answer the question that was put to me. First, I do not speak on behalf of the Church of England; I will be quite clear on that. We are not whipped on these Benches; we speak individually. There happens to be a great deal of agreement among us on these Benches on these issues, but we do not speak with one voice. The question I posed about whether any one of us would want this situation for our children was actually around age assessment. If we found our child or grandchild, or anyone we knew, in this situation, would we want them to be assessed in this way?

As to the question of whether I would ever put a child on a boat, I think that is the wrong question. The point is that, behind every one of these figures, there are individual stories of enormous amounts of trauma that most of us cannot even begin to contemplate. I do not want to make a judgment about what goes on before somebody gets on a boat. I do not know whether it is necessarily parents putting children on the boats; we do not even know what has become of the parents of the children who end up here. I would not want to make a judgment on that.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs)

My Lords, the noble Baroness, Lady Lawlor, said that the Government were making tough decisions by their current policy to make a deterrent. I think that was the gist of the argument she used. As I have said in previous debates, I sit as a magistrate and occasionally I am put in the situation of having to make a decision on somebody’s age. It is usually a very unfortunate circumstance, but it is something I am sometimes called to do. In answer to the noble Baroness’s point, what we want to do on this side of the House is make accurate determinations so that the right decision is made, which defends our reputation as a country which observes domestic and international law and does the best for the children we find in our care. That is the purpose of these amendments, and I support my noble friend on Amendment 34.

Photo of Lord Sharpe of Epsom Lord Sharpe of Epsom The Parliamentary Under-Secretary of State for the Home Department

My Lords, I am grateful to all noble Lords for their contributions to this debate. Amendment 34, tabled by the noble Baroness, Lady Lister, would mean that when a decision is made to remove someone to Rwanda under the Illegal Migration Act 2023, Section 57 of that Act would not apply if there was a decision on age.

As I set out in Committee, it is important that the Government take decisive action to deter adults from claiming to be children and to avoid lengthy legal challenges to age assessment decisions preventing the removal of those who have been assessed to be adults. I have stated previously, and I agree, that assessing age is inherently difficult, but we must disincentivise adults from knowingly claiming to be children, which not only seeks to frustrate removals but causes wider resource and financial implications. It reduces both the availability and the accessibility of services for genuine children in need of them. I will return to these subjects in a second.

Accordingly, Section 57(2) of the 2023 Act disapplies the yet-to-be-commenced right of appeal for age assessments established in Section 54 of the Nationality and Borders Act 2022 for those who meet the four conditions in Section 2 of the 2023 Act. Instead, under Section 57(4) of the 2023 Act, those wishing to challenge a decision on age who meet the four conditions will be able to do so through judicial review, which will not suspend removal. This judicial review can continue from outside the UK after they have been removed. We will ensure that the appropriate support and facilities will be in place in the country of removal so that the individual can effectively participate in their judicial review from abroad.

The noble Baroness, Lady Lister, accused me of failing to engage with the statistics she quoted in Committee. The age dispute statistics that we have differ from the statistics obtained by organisations such as the Helen Bamber Foundation in its April 2023 report Disbelieved and Denied and the joint January 2024 report by the Refugee Council and the Helen Bamber Foundation, Forced Adulthood. We cannot engage because the Home Office is unable to confirm the statistics contained within these reports, which are derived from around 70 local authorities’ responses to FoI requests relating to individuals initially assessed as adults and referred for a further assessment. These statistics cannot be usefully compared with published Home Office figures, which cover all 211 local authorities and aggregate the outcomes of initial age decisions by the Home Office, comprehensive age assessments and any subsequent legal challenges. The Home Office is looking to improve the manner in which age assessment data can be disaggregated in national reporting systems and has included age assessment data requirements as part of planned improvements to internal systems.

Section 57(5) of the 2023 Act also provides the basis on which a court can consider a decision relating to a person’s age in judicial review proceedings for those who meet the four conditions in Section 2 of the 2023 Act. It provides that a court can grant relief only on the basis that it was wrong in law and must not on the basis that it was wrong as a matter of fact, distinguishing from the position of the Supreme Court in the judgment in R(A) v Croydon London Borough Council [2009] UKSC 8. The intention is to ensure that decisions on age are reserved for those qualified and trained to assess age.

The amendment would result in treating those who are to be removed to Rwanda differently from those removed to another country. The purpose of the Illegal Migration Act is to tackle illegal migration and create a scheme whereby anyone arriving illegally in the UK will be promptly removed to their home country or to a safe third country to have any asylum or human rights claim processed. All cohorts who are removed under the Illegal Migration Act should, therefore, be treated the same.

As I said, determining the age of a young person is a challenging task. The majority of individuals arriving illegally in the United Kingdom do not have valid documentary evidence of their age and some may misrepresent their age, whether intentionally or otherwise. Clear safeguarding issues arise if a child is inadvertently treated as an adult, and equally if an adult is wrongly accepted as a child and placed in accommodation with children to whom they could present a risk. Additionally, there are incentives for adults to claim to be under 18 years old as unaccompanied children generally receive a greater level of support than adults in several respects, including the accommodation they are provided with, the procedural and substantive treatment of their immigration claims, the arrangements that would need to be made to secure their possible removal, and the circumstances in which they can be held in immigration detention.

It is Home Office policy that an individual claiming to be a child will be treated as an adult without conducting further inquiries only if two Home Office members of staff independently determine that the individual’s physical appearance and demeanour very strongly suggest that they are significantly over 18 years of age. The lawfulness of this process was endorsed by the Supreme Court in the case of R (on the application of BF (Eritrea)) v Secretary of State for the Home Department [2021] UKSC 38. So we consider that these provisions are entirely necessary to safeguard genuine children and guard against those who seek to game the system by purporting to be adults. It therefore follows that I cannot support Amendment 34.

Amendment 35, tabled by the noble Baroness, Lady Brinton, seeks to prevent the relocation of unaccompanied children and former unaccompanied children from the UK to the Republic of Rwanda. The noble Baroness will be aware that Article 3 of the UK- Rwanda treaty makes specific reference to unaccompanied children not being included in the treaty, and that the UK Government will not seek to relocate unaccompanied children under the age of 18 to Rwanda. The amendment is therefore not necessary.

The Government recognise the particular vulnerability of unaccompanied children who enter the UK by unsafe and illegal routes. The duty to remove in the Illegal Migration Act does not require the Secretary of State to make removal arrangements for unaccompanied children until they turn 18, at which point they will become liable for removal as an adult, either to their home country if it is safe to do so or to a safe third country. Taking these measures will send a clear message that children cannot be exploited and cross the channel in small boats for the purpose of starting a new life in the UK.

I am happy to give the noble Baroness the assurance that I will resend the letter to all those who should have received it, but I note that she quoted from the letter and I need to expand on those quotes a little. She referred to AESAC, which

“acknowledges that there is no infallible method for either biological or social-worker-led age assessment that will provide”— this is the key phrase—

“a perfect match to chronological age”.

It is

“key that methods used for age assessment have a known chance margin of error … that is to say classifying genuine children as adults or vice versa”.

AESAC has proposed an approach that increases accuracy in multiple ways. First, we know that—again, this is important—

“used in isolation, any one biological method of age assessment has a level of uncertainty in assessing chronological age. However, the AESAC report proposes a triage approach, with the methods to be combined dependent on the sex and claimed age of the person being assessed”.

Photo of Baroness Brinton Baroness Brinton Liberal Democrat 5:00, 6 March 2024

The Minister failed to quote the next part of the letter, which I started to quote, about the committee acknowledging that there is uncertainty in the data. It goes on to say that there is

“greater confidence in the assessment of whether the claimed age is possible”.

The point I was making is that it is still a guess. That is the issue, and it is why doctors are refusing to do these age assessments—they do not believe they can be relied on.

Photo of Lord Sharpe of Epsom Lord Sharpe of Epsom The Parliamentary Under-Secretary of State for the Home Department

And the point I was making is that this is done in combination with a variety of other methods and therefore, in aggregate, those methods will deliver more accurate age assessments.

The tragic events this week, which saw a child as young as seven lose their life attempting to cross the channel in a small boat, are an unwelcome reminder of the desperate need to stop this vile trade. Like my noble friends Lady Lawlor and Lord Lilley, I would not allow a child or grandchild to make a dangerous and illegal channel crossing from a safe country. That is the best way to stop this.

This Government remain focused on doing everything we can to save lives, deter illegal migration and disrupt the people-smuggling gangs responsible for the dangerous channel crossings. I respectfully ask that the noble Baroness do not move her amendment.

Photo of Lord Scriven Lord Scriven Liberal Democrat

I have an important question. The Merton assessment is the standard assessment that is done of an individual where the age is in dispute. Will any child or potential adult be sent to Rwanda before that Merton assessment is carried out, or is the assumption that no person whose age is in dispute will be sent to Rwanda before the Merton assessment is carried out?

Photo of Lord Sharpe of Epsom Lord Sharpe of Epsom The Parliamentary Under-Secretary of State for the Home Department

As I have tried to explain, the initial assessment is made by two Home Office officers; the Merton assessment comes later in the process. I do not know quite where in the process, but I will find out.

Photo of Lord Scriven Lord Scriven Liberal Democrat

May I therefore ask another question? What professionals are in Rwanda who can carry out that Merton assessment? Under the Bill and the treaty, a person comes back only if they have been assessed as an unaccompanied child under the age of 18. If the assessment is not done in the UK, how can it be done in Rwanda if that speciality is not developed enough?

Photo of Lord Sharpe of Epsom Lord Sharpe of Epsom The Parliamentary Under-Secretary of State for the Home Department

My Lords, we have discussed on numerous occasions the question of a number of vulnerable individuals who may end up being relocated to Rwanda. The treaty makes specific provision for the precise and detailed professional help those people will need.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

My Lords, I thank noble Lords who have spoken in support of my amendment. To pick up what the noble Lord, Lord Scriven, has been saying, that is part of the point: if two immigration officials say that the child is an adult, the Merton assessment does not come into operation. The point is that we do not have professional social work assessment of the children.

I will not go into what noble Lords who have spoken in support said, but I point out that the right reverend Prelate raised two specific questions which were not addressed. One was about our still not having a child rights impact assessment; the other was a request. I do not know what will happen to these amendments but, at the end of the day, I hope there will be a meeting of all those who have signed them and that stakeholders are consulted on the assessment process, in order to address the very point raised by the noble Lord, Lord Scriven. Does the Minister wish to intervene?

Photo of Lord Sharpe of Epsom Lord Sharpe of Epsom The Parliamentary Under-Secretary of State for the Home Department

My apologies: I meant to say that, yes, of course I am happy to meet.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

I thank the Minister very much, but there is no child rights impact assessment, needless to say.

Noble Lords who spoke against very much used the arguments used in Committee, and evidence was produced there to rebut those arguments. I thank the Minister for his response—he did engage with the evidence this time—but to be honest, if I am asked which evidence I believe more, the Home Office’s figures or the figures collected by people working in the sector with local authorities, I am afraid that I put more confidence in the latter.

I have heard nothing today that has effectively countered the rebuttal of the arguments made by the Minister and his colleagues—some of them put for the fourth time—that I gave in my opening speech. I do not propose to repeat them, in the interests of time. I simply note that the Home Secretary said this week that he would look closely at any amendments that your Lordships’ House supported but would reject any that wrecked or watered down the Bill. Mine is not a wrecking amendment and were the Government to accept it, that would demonstrate true strength in the willingness to be flexible in order to protect the best interests of children. I do not call that watering down. In the interests of children and their welfare, I would therefore like to test the opinion of the House.

Ayes 265, Noes 181.

Division number 2 Safety of Rwanda (Asylum and Immigration) Bill - Report (2nd Day) — Amendment 34

Aye: 263 Members of the House of Lords

No: 179 Members of the House of Lords

Aye: A-Z by last name

Tellers

No: A-Z by last name

Tellers

Amendment 34 agreed.

Amendment 35 not moved.

Clause 5: Interim measures of the European Court of Human Rights