Sections 15 to 18: supplementary
Mr. Malins: I beg to move amendment No. 136, in page 11, line 8, leave out 'and decide'.
The Chairman: With this it will be convenient to consider the following amendments: No. 137, in page 11, line 8, at end insert
'in accordance with Article 3 of the 1989 Convention on the Rights of the Child'.
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No. 241, in clause 36, page 20, line 1, at end insert—
'(2) Where the Secretary of State inquires into a person's age under section 19(2) he shall not do so until he is satisfied that the person has had access to legal advice or assistance and representation.
(3) The Secretary of State may make a grant to a voluntary organisation which provides legal advice and representation to a person described in subsection (2).
(4) A grant under this section may be subject to terms or conditions (which may include conditions as to repayment).'.
Mr. Malins: Amendment No. 136 would remove the Secretary of State's ability to decide a person's age or to draw attention to the issue. The Law Society is among many that are concerned about the implications of clause 19(2) with regard to children. As it says, assessing age accurately is difficult, so the benefit of the doubt should be applied to children unless there is clear evidence to the contrary.
The British Medical Association has also said that accurately assessing the age of the child is extremely difficult, and almost impossible when the child is between 15 and 18. A Royal College of Paediatrics and Child Health report also found that it is not possible to make an accurate assessment of a child's age within five years either way. Those assertions indicate that there should be safeguards to the effect that in a difficult decision in the case of a child, the benefit of the doubt should be applied unless there is clear evidence to the contrary.
Amendment No. 137 is designed simply to ensure that the process is conducted in the child's best interests and in accordance with the internationally accepted norms and procedures. Like the others, amendment No. 241 is a probing amendment designed to safeguard against a practice that is not uncommon: distressing questioning of minors. Apparently, there is considerable evidence of that as a current practice, and the amendment would ensure that children have access to a lawyer and legal advice before they are questioned.
Simon Hughes: My hon. Friend the Member for Sheffield, Hallam (Mr. Allan) is doing constituency work today, and he apologises for his absence. We support amendments Nos. 136 and 137.
Ms Winterton: As the hon. Member for Woking said, amendments Nos. 136 and 137 would prevent the Secretary of State from deciding a person's age when assessing whether they qualify for support in an accommodation centre. It is essential that the Secretary of State is able to make a decision on a person's age to establish which method of support is appropriate. We said that we would not place unaccompanied asylum-seeking children in accommodation centres. If we are to discharge that commitment, the Secretary of State must take a decision on someone's age. There would be little point in the Secretary of State being able to inquire about someone's age, if he could not decide the outcome of that inquiry in a dispute. Some people believe that there is an advantage to concealing their age. An adult may believe that it is better to say that he or she is a minor, as the local authority would be obliged to support an unaccompanied child. That
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would enable the person to stay in London if they had arrived there first. It is therefore important to be able not only to inquire about someone's age, but to take a decision on it.
Article 3 of the UN convention on the rights of the child states that
''the best interests of the child shall be a primary consideration''
in all actions concerning children. The Committee will be aware that the UK has a reservation on that purely to safeguard our immigration and nationality legislation. That does not inhibit our ability to take full account of the child's best interests.
Amendment No. 241 is unnecessary. Our concern is whether someone is the age that they claim to be. That can be difficult to establish if, for example, they cannot provide any documentary evidence. However, matters will not be improved by requiring the Secretary of State not to take a decision until the applicant has had access to legal advice or assistance and representation. The applicant will be entitled to apply to the relevant social services department for support as an unaccompanied asylum seeker. It is up to the local authority to consider whether there is evidence to back up the claim.
If someone arrives at a port and needs support, they will be referred to a reception assistant for advice, which is provided by members of voluntary organisations who specialise in dealing with migrants and refugees. If they consider an applicant to be a minor, they are likely to refer the person to the social services department for help. If a social services department does not consider the person to be a minor, it will refer them to NASS for consideration of support. In the absence of any other evidence, NASS will be guided by the view of social services.
In that system, if the person obtained judicial review of the move, they would be entitled to legal representation. However, given that the Government do not accept the case for legal advice and representation in the first instance, we see no need for a statutory power to make grants to voluntary organisations, with or without conditions attached, in those circumstances.
I hope that, with those assurances, hon. Members will not feel the need to press the amendment.
Simon Hughes: I have one question for the Parliamentary Secretary: do the Government have any plans to withdraw their reservation to the declaration of the rights of the child? If not, will she either tell us now or write to us saying why?
Ms Winterton: We have no plans to withdraw our reservation.
Mr. Malins: I have listened carefully to the Parliamentary Secretary and I am grateful to her. It was worth having that short debate, even though not all the questions were answered. In the circumstances, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
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Simon Hughes: I reflect on the fact that, under the process here, the date on which the asylum claim shall be treated as determined is decided by the moment at which the Secretary of State sends off his notification. The calculation also involves the post for a couple of days. However, as we discovered earlier, the date on which someone applies is taken to be not the date on which they send off their application, or a couple of days later, but the date on which it is received. There is an inconsistency there.
Ms Winterton: The hon. Gentleman makes a good point and I am delighted to be able to tell him that we shall consider it.
Question put and agreed to.
Clause 19 ordered to stand part of the Bill.
Clause 20 ordered to stand part of the Bill.
Person subject to United Kingdom
The Parliamentary Under-Secretary of State for the Home Department (Angela Eagle): I beg to move amendment No. 106, in page 11, line 28, leave out subsection (1) and insert—
''(1) A residence restriction may include a requirement to reside at an accommodation centre.''
A person arriving in the UK may be examined by an immigration officer to determine whether he or she should be granted permission to enter. Such people are liable to detention pending an examination and any decision to grant or refuse leave to enter. However, they may be temporarily admitted to the UK without being detained, or may be released from detention pending a decision. They are then made subject to residence and reporting instructions.
Furthermore, persons who have been notified of a decision to deport, or concerning whom a deportation order is in force, are liable to be detained. Where they are not detained, they too may be subject to residence and reporting restrictions. The clause enables residence restrictions to include a requirement to reside at an accommodation centre, in the same way that we can currently require someone to reside at a private address. The amendment will ensure that we have the necessary flexibility to require those who have been notified of a decision to deport, or who have been made the subject of a deportation order, to reside at an accommodation centre.
Simon Hughes: I have a question, and I am happy for the Under-Secretary to give the answer later, if she does not know it immediately. Once again from constituency casework, I am well aware that people are often refused, but given the right to be admitted in practice, with a later reporting date and so on. At some stage, will she be kind enough to tell us what percentage of people go through that initial process of refusal but admission, as opposed to refusal and detention?
Angela Eagle: I am afraid that I do not know the answer. I shall try to get the information for the hon. Gentleman and let him have it later in our proceedings.
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Amendment agreed to.
Mrs. Cheryl Gillan (Chesham and Amersham): I beg to move amendment No. 139, in page 11, line 36, leave out
''whether by him or by someone else''
''by himself of a member of his family.''
The Chairman: With this it will be convenient to take amendment No. 180, in page 11, line 36, leave out ''someone else'' and insert ''a dependant''.
Mrs. Gillan: Amendment No. 139, which stands in my name and those of my hon. Friends, should say ''by himself or a member of his family'', but the amendment paper reads
''by himself of a member of his family''.
I hope that the misprint is corrected.
The amendment simply probes to discover further and better particulars from the Minister. It is wholly inappropriate that a person should be required to leave accommodation as a result of the actions of others, over whom no control has been exercised, in a form of absolute vicarious liability. What does she mean by ''someone else''? She is nodding furiously. I am sure that when the time comes, she will be able to fill us in.
It seems to be a wholly unreasonable proposition that the clause should be drafted so widely and so inappropriately. To dwell on the point, if someone in a centre with a group of friends had a party that got out of hand and broke the terms and conditions, it would be quite inequitable for that individual disproportionately to suffer punishment from which there was no escape and for something that they may not have been responsible for in the first place. As we know, all legislation is gender blind, although the wording implies a man. However, we must consider the position of women who may be in such centres and what might happen in circumstances over which a woman has no control whatever.
It is not unreasonable to propose a substitution and to say that a member of the family is someone over whom an individual may be expected to have some control. Therefore, we would substitute the words
''by himself or a member of his family''
in the hope of some recognition of the fact that the drafting is inappropriate in such conditions. I hope that the Minister, after all her furious nodding and smiling, agrees with me and either accepts my proposal or makes one of her own that would tighten up that area and not leave such a gaping, inequitable provision in the Bill.