I think this area of immigration policy is as difficult as any. The hon. Gentleman is quite right to raise it because there are two genuinely conflicting principles here and I am sure that the Minister feels as strongly about them as anyone. The first is that we need a proper, efficient, secure immigration system and the second is that we should pay particular regard to the interests of children. It is not easy to reconcile those two principles at our borders at a time when something like 3,000 unaccompanied children per year are arriving in this country. It would have been particularly valuable to hear oral evidence from the Refugee Children’s Consortium because both sides of the Committee could have explored those genuinely conflicting principles—that is why that particular decision was so regrettable.
The amendment before us, as has been said, simply adds the designated immigration officers to those subject to the various conditions of the 2004 Act. That means that they would have to give primary consideration to the needs of children and families. When the Act was passing through Parliament, the Refugee Children’s Consortium sought to insert such a provision and only narrowly lost a Division in the House of Lords.
The then Chairman of the Joint Committee on Human Rights criticised opposition to such a provision on the basis that the omission of refugee children from the institutional arrangements designed to fulfil the state’s positive obligations to children under articles 2, 3 and 8 of the convention on human rights raises the question whether that gives rise to unjustifiable discrimination in the enjoyment of convention rights. At the time, the Minister argued that the duty to have regard to safeguarding and promoting the welfare of children could severely compromise our ability to maintain an effective asylum system and strong immigration control—and there lies this clash of moral principles.
The Minister and the Government have come down on the side of, as they see it, an effective asylum system and strong immigration control. I have some sympathy with that as, over the past few years, we have not had an effective asylum system or strong immigration control. I can therefore imagine why the Government felt unable to add this apparently simple clause to the 2004 Act as it would potentially have made what was already a terrible situation even worse.
In those debates, the Minister went on to argue—as I suspect it is possible he will today—that in undertaking its function, the IND will do things that will be judged as inconsistent with the duty to safeguard and promote the welfare of children. That is quite a strong statement and is what he was arguing in the House of Lords. To say that we will do things inconsistent with the welfare of children is quite eye-opening as a statement of Government policy. As he argued—again I have some sympathy with this—in practice, that could be used as a means of delaying or preventing people from being returned home. We cannot do that. Again, I imagine that this is the basis of his case: if we are going to run an effective asylum system and strong immigration control, we must have the power to return people home who have no entitlement to be in this country, even if they are children.
To be fair, the Refugee Children’s Consortium welcomed the assurance given in the Home Office’s consultation paper on unaccompanied children that the Government will take those things seriously, but it goes on to argue that it is alarming that the Government cannot offer refugee children the protection afforded by section 11 of the 2004 Act, in relation to the institutions and bodies responsible for their care and welfare. Their argument that section 11 is not an absolute duty is reasonable. It simply requires agencies to make arrangements to have regard to the need to safeguard children and promote their welfare in the discharge of their functions.
When the Act was passed, the Minister at the time argued that the Government had worded the clause very carefully. She said that they
“do not put a duty on agencies that would make them unable to fulfil their primary functions”.—[Official Report, House of Lords, 17 June 2004; Vol. 662, c. 995.]
This is clearly not a debate across the Floor of the House. Ministers who have been responsible for both immigration and children’s welfare in this and the last Government have had to grapple with a genuine problem, and while acknowledging that it is difficult, they have come down against the view expressed in the amendment. I would like to hear the updated version of the ministerial briefing that I suspect has gone to Ministers from both those Governments about how the obligations that we all recognise as essential under the Children Act 2004 can be properly balanced with the need for an effective immigration system.
One argument put by the Refugee Children’s Consortium is that the police are included, for example. When we talk about giving immigration officers powers that move towards those of a police constable, it seems even more difficult than before to have set one set of duties for police officers that are not being required of immigration officers when in other respects their powers are being merged. The explanatory notes on the Bill that became the 2004 Act stated:
“This duty is intended to ensure that agencies are conscious of the need to safeguard children and promote their welfare in the course of executing their normal functions”.
The Refugee Children’s Consortium has taken legal advice telling it that the duty under section 11 of the 2004 Act does not give rise to a free-standing duty to safeguard or promote a child’s welfare, but qualifies the manner in which existing duties and powers can be exercised.
I suspect that the nub of the problem with which successive Ministers and Governments have grappled is whether the section 11 duties actually preclude removal. That must be the heart of the matter, because if they do not preclude removal, the arguments against the amendment will tend to fall away.
The Refugee Children’s Consortium points out that the omission of the immigration service from section 11 is brought into sharp focus by the proposals before the House, precisely because of the broadening of designated immigration officers’ powers. It argues—I do not go all the way with it on this—that it is impossible to reconcile the Government’s assertion that “every child matters” with the exclusion of key agencies responsible for the care of refugee children from section 11 of the 2004 Act. It also argues that extending the powers of immigration officers should not be approved unless safeguards including the specific application of section 11 to the immigration service are in place, and the hon. Member for Rochdale has argued the case for that.
As I say, I have sympathy with the Minister and his many predecessors who have had to argue this case. However, I hope that he can address the central issue before us: whether applying section 11 would, in any material way, make it impossible for immigration officers to do their job properly, and in particular, whether he sees it as precluding proper removal of children at a time when more and more are coming to this country.
The point was again made in oral evidence, this time by Keith Best, who said that there are
“about 3,000 children a year coming into this country ... They need particular care ... they need care that will give them direct and immediate access to legal advice, so that they can be assisted in their claim”.
On another aspect, which I hope that the Minister can address when he responds on this amendment, Keith Best went on to say that
“they also need to be treated sympathetically when they reach that magic age of 18 because it is a traumatic event to be told that, on your birthday, you will no longer be given any kind of protection and you will be removed. So there needs to be sensitivity.”——[Official Report, UK Borders Public Bill Committee, 27 February 2007; c. 59.]
Whatever our attitude to the amendment, we would all agree on the need for sensitivity and acknowledgement that the likelihood of removal at 18 will be traumatic for the individuals concerned, although that in itself is a symptom of the wider point that striking this balance is not easy.
Unusually, I have sympathy for the Minister over the dilemma that he faces in opposing the amendment, but the terms of the argument that he uses are important. Like many, I have grappled with the moral aspects of this issue. In a sense, I would hope to be convinced by him that if we are to proceed with not incorporating section 11, it is because its legal effect would be to render our immigration and asylum systems much less effective. If he cannot make that case, the moral case for including section 11 is extremely strong. I shall be interested to hear what he has to say.