'(1) Section 62 of the Immigration, Nationality and Asylum Act 2002 (c.41) (detention by the Secretary of State) shall be amended as follows.
(2) In subsection (1) insert the words ''over the age of eighteen'' after the word ''person'' in the first line.
(3) After subsection (3) insert—
''(3A) A provision of Schedule 2 to that Act about a person who is detained or liable to detention under that Schedule shall only apply to a person over the age of eighteen.
(3B) Nothing in Schedule 2 to that Act or in this section shall permit the detention of a person if the result of that detention would be the detention of a person under the age of eighteen.''.'.—[Mr. Gerrard.]
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
The Chairman: With this it will be convenient to discuss the following:New clause 13—Detention of under-18s—
'In section 62 of the Nationality, Immigration and Asylum Act 2002 after subsection (3), insert—
(a) the detention of a person under the age of 18 for more than 7 days, or, in exceptional circumstances, 10 days, or
(b) the detention of a person if the result of that detention would be the detention of a person under the age of eighteen for a period of more than 7 days, or, in exceptional circumstances, 10 days.''.'.
New clause 8, which stands in my name and that of the hon. Member for Perth (Annabelle Ewing), and new clause 13, which stands in the name of the hon. Member for Winchester, address the question of the detention of children. There are some differences between the two clauses. I shall address my remarks mainly to new clause 8, but the main difference is whether detention should be banned completely or whether there should be time limits. Common to both of the new clauses is the issue of how and when children should or should not be detained.
Much concern has been expressed about the detention of children. Her Majesty's inspector of prisons reported on conditions in immigration detention centres and raised some significant concerns about the detention of children in those centres. In response to that, the Government made some announcements in December, to which I will return later.
I hope we all agree that detention facilities would never be the best environment for children. No one would want to see children in detention facilities. Detention facilities would have a negative impact on children; I suspect we all agree with that. However, disagreements arise over whether there are
circumstances in which it would be reasonable and in which there would be no option other than to hold children in detention.
When children are detained, they are usually detained with one or sometimes both their parents. It is quite difficult to know the exact numbers or the lengths of time involved. Unfortunately, whenever one gets statistics on the detention of children—or on detention in general, although this is particularly the case when it comes to children—it is only possible to get snapshots and statistics that say how many children were in detention on a particular day. A figure of 81 children in detention was given in November last year; different figures are quoted at different times. It is extremely difficult to get any sort of reliable information about how long children are detained. We have all seen anecdotal evidence about individual cases, which sometimes involve quite long periods of detention. It is difficult to track what happens.
For some time, it was official policy that families would not be detained for more than a few days and that that detention would be specifically in the period before removal. However, the 2002 White Paper said that families could be detained for longer periods if necessary. In 1999, there was the possibility of an automatic bail hearing, which would have applied to families with children. It was never put into practice and was removed from the law by the 2002 Act.
The United Nations High Commissioner for Refugees clearly states that refugee children should not be detained. That is the view of many of the groups that work with asylum seekers and refugees.
We need to be clear about the category of people we are discussing. Does my hon. Friend agree that, certainly so far as the Dungavel detention centre in Scotland in concerned, it is neither asylum seekers nor refugees who are kept there, but those whose applications have failed and whose legal status is therefore that of illegal immigrants and not refugees?
I am not familiar with every case at Dungavel. I certainly know that in some of the other facilities, such as Oakington, families have been detained who have not had their asylum claims considered and decided. Therefore, I do not think it is possible to argue that what my hon. Friend said would be true across the detention estate.
My understanding is that children of asylum seekers have been detained in Dungavel. As the Minister mentioned, one of the apparent grounds for detaining asylum-seeker families in Dungavel is if identity cannot be established.
I thank the hon. Lady for making that point. I am aware of families in Oakington whose cases have not been decided.
Usually, the question of the detention of the parent will be addressed first and the question of the detention of the child will follow on from that, on the presumption that it is best for them to remain with their parents. I am unsure whether parents would
always agree that it would be best if their children were to end up in detention. The prisons inspectorate recommended that detention should be exceptional and only for very short periods, and that there should be more reliable information from immigration authorities about detention.
Some of the organisations that work with asylum-seeker families have always maintained that detention has not been the exceptional course, but that it has been used in cases where families have not absconded but have maintained contact with the immigration authorities and where people who have been detained have then been released and obtained asylum status. Therefore, they cannot only have been present at the last minute before they were removed.
In December, the Home Office announced measures designed to respond to some of the criticisms about the detention of children. One suggestion was that the express authority of Ministers would be required to maintain detention after 28 days, but that is not the same as a few days, which is what the prisons inspectorate proposed should be the limit. There is a question as to what access a detained family ought to have to legal representation so that they can challenge their detention.
I can think of very few cases where I could see a justification for detaining children. I hope everyone agrees that that should be a last resort, but I am not convinced that the evidence shows that to have been the case. There are people in detention whose asylum claims have not been considered: people with children have been detained for a long period rather than only for a few days. We ought to tighten the rules on the detention of children.
That, essentially, is the purpose of the new clauses. Children should not be in detention. It is not appropriate for a child who has not committed any offence to be held in detention because of the actions of their parents.
Without the text of the original Immigration, Nationality and Asylum Act 2002 before me, I am unsure how the new clause fits in. Would it prohibit the detention of under-18-year-olds in all cases? I am sure my hon. Friend will agree that there may be some occasions when parents and children would prefer to be kept together in detention rather than be split up in the community. He can correct me if I am wrong—which I might well be—but would not the new clause prohibit the detention of children in all cases, even when the families would prefer to stay together?
That would certainly be the effect of new clause 8. New clause 13 would be slightly different in that it would set a maximum period of time. I can understand the argument about my amendment being too extreme a provision, but my purpose in tabling it is to raise the issue of detention and argue that it is not being used in the limited way in which everyone believes it ought to be used. We must tighten up the criteria that are used before any child ends up in detention.
I support new clause 8. As a fail-safe, I have sympathy with new clause 13, which was tabled by the hon. Member for Winchester.
As the hon. Member for Walthamstow (Mr. Gerrard) says, new clause 8 would remove the power in section 62 of the Nationality, Immigration and Asylum Act 2002 to detain children under 18 years in what are now called removal centres. That would, as he also rightly said, be in accordance with the basic principles of the United Nations convention on the rights of the child.
Notwithstanding the fact that the Bill, which we have been discussing for many hours, will introduce major and far-reaching changes to the asylum and immigration system, the UK Government have not seen fit to directly address the considerable disquiet about the detention of children, as provided for in the Bill. That is a missed opportunity.
The Minister will be aware that there has been a massive campaign in Scotland on the detention of children at Dungavel removal centre. She will also be aware that there is widespread consensus in civic Scotland that this practice is morally wrong. That consensus includes most of the major Churches in Scotland, the Scottish Trades Union Congress, charities working directly with children, and even Labour-run Glasgow city council, which has expressed extreme disquiet about this practice. Some political parties, including my own Scottish National party, are part of that consensus, but not all.
The hon. Lady has rightly and accurately listed a number of organisations that are opposed to this measure. Does she believe that those opinions from civic Scotland represent a particular percentage of the electorate? Will she say what percentage of the electorate opposes this measure?
No one knows scientifically, because there has not been a referendum on the subject. I suggest, however, that given the nature and widespread involvement of all the bodies that the hon. Gentleman mentioned, he can safely assume that there is a feeling, which is widely held throughout Scotland, that it is wrong to detain innocent children in what is, in effect, a prison at Dungavel. Dungavel shares the key characteristic of a prison, which is that people are not free to leave.
Is the hon. Lady aware of the YouGov poll conducted towards the end of last year, which showed that a significant majority of the people of Scotland who took part in that poll supported the use of detention where it was necessary, including for families? Does she agree that some of the language that has been used by her party and others—including some people who have not visited Dungavel—is erroneous, inaccurate and damaging in describing it as a prison? She may want to enlighten the Committee as to whether she has been inside Dungavel.
polls? Perhaps I could point her to the poll carried out by The Herald newspaper, based in Glasgow, which showed that 80 per cent. of the people who responded were very unhappy about the practice of locking up innocent children.
Thirdly, as I said to the hon. Member for Glasgow, Cathcart, we should call a spade a spade. If one is not free to leave an institution, that institution is a prison in anybody's book.
I am grateful to the hon. Lady. She is showing a lot of consideration for those wanting to make interventions. The year before last, she and I were part of a parliamentary delegation to Dungavel. That day—she can correct me if I am wrong—she expressed complete satisfaction with the facilities there. She told staff members that she was surprised at the high standard of facilities. Does she still hold that view?
I said to the staff that suggestions that they were not doing the job that they were tasked to do were incorrect. They were doing the job. The key issue is whether the job description fits the bill, as far as the detention of innocent children is concerned. Unlike every other child in Scotland, those children are excluded from mainstream education. I made that point clearly to the staff at Dungavel, including the director. I am always happy to take interventions, from the hon. Member for Glasgow, Cathcart in particular.
To return to the key points, I think that there has been a missed opportunity, because we have seen nothing in the Bill that would start to address the disquiet that has been expressed in very temperate language by my party, by the churches in Scotland and by the leader of the STUC in Scotland, Mr. Bill Spiers. I think it likely that the significant campaign in Scotland has led, at least in part, to the ministerial climbdown to which the hon. Member for Walthamstow referred; the Minister's announcement on 16 December last year that children in places such as Dungavel would not be detained for longer than 28 days without being subject to a ministerial review. That is welcome as far as it goes, but as I said on Second Reading, 28 days for a child in a place such as Dungavel is 28 days too long. Moreover, there appears to be nothing in that December ministerial statement that would prevent children from being held for longer periods and being subject to a further review 28 days after the first one. That is regrettable and does not accord with the basic principles of the UN convention and of a decent society.
Finally, I turn to the key issue of the alternatives. Several alternatives have been suggested to the detention of families with children. One is local reporting, which should be explored further. Another proposed recently, also at the initiative of the churches in Scotland, is the Refuge Scotland project, initially put forward by the Church of Scotland, but supported by the Catholic Church, the Baptist Church and various children's charities in Scotland. That would allow families with children to stay in a hostel; in the
community, and not within a barbed-wire fence. The children would be allowed to attend local schools. In Glasgow, it has been proved that the attendance of asylum-seeker children is always an asset and never a disadvantage to a school. That proposal was very innovative, and I am not sure whether the Home Office has responded to the Church of Scotland and others about its views on the proposal, which has counterparts in other countries.
The Minister may be aware that Belgium, for example, runs an open hostel system. The children of asylum seekers attend local schools. When the right hon. Lady replies, I urge her to deal specifically with the helpful and constructive proposals that have been put forward as alternatives to detention. Why was the 28-day ministerial review not included in the Bill? Perhaps the right hon. Lady is planning to come forward on Report with an amendment along those lines.
Beverley Hughes indicated dissent.
That is a pity because, as we have seen, the more clarity in the Bill, the better it will be for all concerned. The practice of detaining children in what are, in effect, prisons is wrong, and it should be recognised as such. The Minister has moved a little, but not nearly enough. I assure her that my party will continue to campaign vigorously on the issue throughout civic Scotland, because it is not acceptable to us in Scotland that such action is being taken in our name.
Although I prefer my new clause 13, I support the principle of new clause 8 and the arguments put forward by the hon. Members for Walthamstow and for Perth. There is a subtle difference between the provisions. Although we are coming from the same perspective of wanting to probe the Government about their intentions of detaining children, we want them to recognise that there could be circumstances under which we may want to keep the family together. New clause 8 fails, because it would make that impossible.
Our measures in new clause 13 recognise those circumstances under which we would want to keep children with the family, but we argue that controls and time limits are put in place, such as periods of between seven and 10 days, seven days being the maximum time unless there are exceptional circumstances, when the period would be extended to 10 days. That proposal is considerably different from the period of 28 days to which reference has been made.
I agree with the hon. Member for Perth that the ministerial statement that we heard before Christmas, in which it was said that there will be a ''ministerial lock'' in relation to a period of a month, was not good enough. Will the Minister reconsider the 28-day period and make it one of seven days? It is important that, if a provision has the grand title of a ''ministerial lock'' attached to it, the least that we can do is to have that so-called lock added to the Bill, so that we absolutely
understand the Government's intention. The Bill allows for exceptions to be made, but I would be much happier if it referred to a period of seven days rather than a 28-day period. We should have a time scale under the Bill, not just a ministerial promise.
Will the Minister give us an assessment of the number of children being held at present? In answer to a parliamentary question in April 2003, the number of children being held was 56. Can she update the Committee on the latest figures? I hope that she accepts the argument advanced by the Scottish nationalists that there are good practices in other parts of mainland Europe. Can we not learn from the way in which children are held in those circumstances, where there is a combination of an ability to keep a family together with the need to have a form of detention in the period just before removal?
First, I understand and share the starting point for many members of the Committee that the issue is serious. Of course the detention of UK children with their parents and on their own is not without precedent, but the detention of a child in any circumstances is serious. When that child is not the subject himself of concern—either because he has committed offences or is for some other reason at risk—his detention is perhaps even more serious.
I come to this in very much the same spirit as other hon. Friends and hon. Members, but I also feel that members of the Committee have to open their minds to the reality of some of the dilemmas we face; real dilemmas involving individual families in terms of past behaviour and the risk presented in immigration terms by their parents. I do not believe that a blanket inability ever to detain an adult where they have a child attached is the right way forward; nor, equally, while there is tremendous pressure in the system to keep both the numbers down and the length of stay down, is the imposition of what would be inevitably arbitrary but well-meaning time limits. These, in themselves, would create the kind of perverse incentive that we want to avoid. I will get to that point in a moment.
New clause 8 would seek to prevent the detention of children and young persons under 18 under any circumstances. New clause 13 would, for the first time, set a statutory time limit on the detention of children and young persons under 18. To clarify, our policy at present is that detention may be appropriate for people when the identity and basis of claim needs to be established; for people who are unlikely to comply with the conditions of temporary admission or release; and to effect removal.
In addition, where a person's asylum claim appears to be capable of being decided quickly, they may be detained as part of a fast-track process. For the vast majority of people detained, that is after a decision on a claim has been made and been refused. They are not usually children of refugees or even children of potential refugees, although some people in the fast-track process might fall into that category. However, largely because they are in the fast-track process, they are, by definition, very unlikely to have a positive decision on their asylum claim. We are not talking
about people who have had or are likely to have a positive decision on their asylum claim. These are people whom we would be seeking to remove.
The policy on the use of detention applies both to families, including those with minor children, and to single adults, and all decisions are taken on the basis of the individual circumstances. I should like to raise three main points. First, it is sometimes necessary to detain a family with children because of the risk to immigration controls that that family presents and because of the dilemma presented. I have been seeing these cases in detail for some time, but now I receive weekly reports on more cases coming up to the 28-day mark. There are very few; none the less, these are the most difficult cases.
An example of one case is a mother who arrived in the UK late in 2000. She was refused leave to enter but granted temporary admission in order to return home. She absconded. She had a baby in late 2002, but she disappeared. She was next encountered when she was arrested late last year, 2003, for serious drug offences. Her son was then taken into care because she had been arrested. She applied for asylum after she had been arrested. That was the first asylum claim. She and her son were to be removed on an emergency travel document, issued by their own authority, but the issue of that document has been delayed because when she registered her son's name with an alias. Therefore, we are now in difficulties with her country of origin about her identity and whether she is a national of that country. Detention is necessary while her identity is established and we try to remove her to her country of origin. There is no prospect of a voluntary departure and there is a high risk that she will abscond again.
Hers is not untypical of the difficult cases that we are discussing. There are only two alternatives to detention. The first is to release her and her child together, in which case she will certainly abscond, go to ground, and disappear: we will not be able to trace her, and she, like others, will not comply with reporting procedures. The second is to take the baby back into care: he is very young and has hardly been with his mother, so if we take him into care until we can release her and put them on a plane together, they will not know each other. Who can say that that is in the interests of the child? I cannot. In such cases, it is in the interests of children that we keep them with their parent or parents. We do not make up such cases; this is the reality that the immigration department has to deal with in the small number of difficult cases in which we have to have the option of detention.
We are talking about a small minority of cases, none the less. I shall come to the statistics in a moment. The hon. Member for Perth said that there are other options and asks why we cannot have reporting. I do not know where she thinks that the vast majority of families who never go into detention are. In fact, they are living in the community, their children are in school, they comply with reporting and when we are in a position to remove them, they are removed. If they do go into detention, it is for one or two nights in order to get them on to a plane. Reporting is used wherever
we can use it. It is what we want to do, because it makes economic sense and is in the interests of the family. However, some families will not comply and will not go home voluntarily. For them, we have to make provision for detention.
I shall be interested to hear the Minister's statistics. My understanding is that not every single asylum-seeking family that is detained is detained on the basis of a perceived risk of removal. As the Minister has indicated, people are detained for a number of reasons. I should not have thought it beyond the wit of the Home Office to come up with a workable system that would allow children and their parents to live, as far as possible, a normal life in the community without being locked up in a detention centre.
As I said, that is the experience of most families. Some families might be detained for one or two nights so that we can effect a removal. The families that we are discussing, who are in detention for longer than that, are those who pose real problems, usually relating to risk and often to refusal to co-operate with our efforts to identify them and arrange travel documents.
My right hon. Friend makes a powerful case. I have just been on the police parliamentary scheme. Among other cases, I came into contact with somebody in the situation that my right hon. Friend has described. For her, release back into the community would mean release into the hands of pimps, drug pushers and other reprehensible people who would have a profoundly negative effect on both her and her small child.
I am grateful to my hon. Friend for the example. With the best will in the world and without being negative, it is simply a fact that the behaviour and lack of co-operation, and the significant risk that is presented by some people and presented to them by those with whom they would otherwise get involved, mean that detention is necessary.
I understand the concerns voiced my hon. Friend the Member for Walthamstow. Statistics are difficult, but I will try to give him a picture from the end of December, then tell him the number of children in detention yesterday. I am trying to prepare a system that allows us to put disaggregated information relating to children publicly into the statistics. Those figures exist at the moment, but they are not disaggregated, which I think is necessary.
From our internal management information, of the 21 children in detention at the end of December, nine, in six family groups, had been detained for more than 14 days. Of those, four children, in three family groups, had been detained for more than 28 days—the case that I have just outlined is one of those. It is cases of that nature where longer detention occurs. The average period of detention for families with children who had been removed or released from detention where these serious impediments were not encountered was just over seven days. That average
varies quite a lot—a few months ago it was four days. The overall average, including some of the cases involving longer detention, was nine days. As of midday yesterday, a 35 children were in detention. I do not have the breakdown that I was able to give for December.
This may be a minor point, but I think it is important because it shows that the use of detention is very limited indeed compared with the number of families with children with whom we are working. Members may take the view that detention of any child in any circumstance is always wrong. If they do, I have to part company with them at that point, for the reasons that I have outlined. I hope they accept that a genuine effort is made, buttressed by the measures already mentioned, to use this provision as sparingly as we can, and only in cases where it is necessary.
The Minister makes a compelling case. As I said earlier, I accept that there are occasions on which it is proper to keep the family together, and it may even be that my seven-day suggestion is wrong. Will the Minister at least make clear the importance of having the ministerial lock? The review that she undertakes each month gives me comfort that she is checking and looking at these cases, but it would give me more comfort if I knew that it was a requirement for future Ministers to do the same thing.
I will get to that point in a moment. The fixed time limits on detention provided for in the new clause tabled by the hon. Member for Winchester would necessarily be arbitrary. However, the most important point is that in the type of case I outlined earlier they would provide a perverse incentive for somebody to fail to co-operate until they reached the time limit, knowing that they would then have to be released. That would be very wrong; it would encourage people not to co-operate and to stretch out the process. That would give us intolerable difficulties in trying to get co-operation from those families.
The ministerial authorisation in respect of people coming up to 28 days in detention was one part of the package of measures that I announced. It also includes the appointment of a senior official to oversee all the families, particularly regarding case progression and the welfare of children, and report directly to me; enhanced detention review arrangements for family cases; and other measures to ensure that we have education facilities and social services links with authorities where there are removal centres in which families can be detained.
I do not think we need a legislative provision for the ministerial authorisation, and we will continue with it. I see cases every week, I get a full case history and I ask whatever questions I want. Although I have no concerns about the system, the need for officials to account to me for what is happening puts another pressure on the system. There are real difficulties with some cases, particularly with redocumentation, but I authorise continued detention only where the issues
are clear and where detention is necessary because there is no alternative. On the other hand, we have released several families in recent months as a result of such scrutiny, and I assure hon. Members that we will continue with it.
I do not think that I can usefully say anything more, other than that I recognise and understand hon. Members' genuine concerns. However, I hope that they now have a greater insight into the difficult issues with which some people unfortunately present us, and that they realise that we are trying to balance those issues in the best possible way. The best interests of the chid are up right up there alongside immigration issues. That is why I do not agree that being unable to detain children in any circumstances is in their best interests. In some instances, it is in their best interests, because the alternative is separation at a time when the parent needs to get to know their child again.
No, I am about to conclude. In the light of my comments, I hope that my hon. Friend the Member for Walthamstow will withdraw the new clause.
I thank my right hon. Friend for her reply. I have no doubt that she carefully reviews the cases that are brought before her every month, but I always prefer having something in statute to relying on the good offices of individual Ministers, who may move on.
I listened carefully to my right hon. Friend's comments, and I want to think carefully about them before Report, when we may want to return to the issue in some form. I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.