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Consequential etc provision

Part of Immigration and Social Security Co-ordination (EU Withdrawal) Bill – in a Public Bill Committee at 3:45 pm on 26th February 2019.

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Photo of Kate Green Kate Green Chair, Committee on Standards, Chair, Committee of Privileges, Chair, Committee of Privileges, Chair, Committee on Standards, Chair, Committee on Standards 3:45 pm, 26th February 2019

The hon. Gentleman makes an important point, which is linked to the need for top quality advice for families deciding what status they and their children should seek in the future. We know that children may have a claim to British citizenship, which would give them higher status than the settled status that may be available to their parents. Their parents and carers will need advice about the best form of status that those children should seek in future. That will be difficult in a complex system, as the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East rightly says, if they do not have access to good quality advice and information.

We know that, as a result of the failure to secure status, children become undocumented and could, potentially, face removal from this country—the country they have grown up in. That is a real risk in the current immigration system if no further safeguards are put in place or, for that matter, if we do not secure assurances, which I hope the Minister can give the Committee this afternoon.

Amendment 27 would introduce a critical safeguard to ensure that any child’s best interests are proactively and robustly assessed prior to taking the decision to remove a child from the UK or before a child’s rights are breached by a removal decision, for example, where they may become indefinitely separated from a parent or carer. The amendment makes it clear that a holistic assessment of their best interests must be undertaken, including, but not limited to, taking account of the views, wishes and feelings of the child; their educational and emotional needs; the risk of harm to the child if removed; and the citizenship rights of the child, including whether the child is a British national and if so, how they would be able to thrive outside of their country of origin if they were removed. Assessing a child’s interests in those ways is not new or novel. We are not talking about sweeping reform with this amendment, but about introducing a basic safeguard into a complex adversarial system where it is not uncommon for life-changing mistakes to be made.

The UK Government are bound by international, European and domestic law to take the best interests of the child into consideration when making any decisions in all matters that affect children. Indeed, the UN convention on the rights of the child states that the best interests of the child need to be a primary consideration in all acts concerning them. Section 55 of the Borders, Citizenship and Immigration Act 2009 encapsulates the best interest principle in UK domestic law and must be followed by Home Office decision makers when exercising their immigration, asylum and nationality decisions. What is more, section 55 of the 2009 Act places a duty on the Home Secretary to make arrangements to ensure that immigration functions are discharged having regard to the need to safeguard and promote the welfare of children. There is a clear, mandatory duty to safeguard and promote the wellbeing of children on the UK statute book.

Case law demonstrates clearly that what is best for the child must be a primary consideration. The Government’s first step must be to determine what is in the child’s best interests and whether it is outweighed by any countervailing considerations.

The Minister may say that there is no need for amendment 27 because the section 55 duty already exists, that the Home Office takes its welfare considerations very seriously and that each child’s case is considered individually. However, we know from civil society and children’s organisations and from research that there is currently no best interests determination process in place in Home Office decision making. Specifically, I am aware of no formal process by which children’s best interests are examined, assessed, weighed and recorded when removal decisions are made. Instead, decisions about children’s best interests are considered through an immigration prism.

The Committee on the Rights of the Child expressed regret that the rights of the child to their best interests, taken as a primary consideration, is still not reflected in all legislative and policy matters. Furthermore, in 2017 the Coram Children’s Legal Centre reviewed a sample of Home Office decisions in family migration cases, and found that in 40% of cases it did not engage with the child’s best interests at all, and in a further 20% it devoted just a couple of sentences to child’s best interests. We cannot be satisfied with that neglect of our obligations to children’s welfare. Those findings are further supported by research from the Law Centres Network, which reviewed 26 refusal decisions in asylum cases involving unaccompanied children, and found that only 14 explicitly referred to the section 55 guidance, usually by way of a generic paragraph. That is a staggering institutional omission by the Home Office, and a failure to meet its statutory obligations to the rights of children adequately.