33. Memorandum submitted by Scotland's
Commissioner for Children and Young People
EXECUTIVE SUMMARY
This submission sets out the role and interest
of Scotland's Commissioner for Children and Young People.
It focuses on issues relating to the children
of failed asylum seekers, with some reference also to unaccompanied
asylum seeking children. It draws on meetings and other communications
the Commissioner has had with affected children and young people,
their friends and teachers and members of their communities.
The Commissioner urges the Committee to examine,
not just the written content of policy documents, but the lived
experience of affected children and their communities.
The Commissioner expresses concerns about:
— The criteria for detention;
— Decision-making prior to detention;
— Children's rights to challenge their
detention;
— Lack of adequate and meaningful information
about numbers detained;
— The traumatic removal processes to
which children can be subjected;
— A lack of adequate support for unaccompanied
asylum seeking children in Scotland; and
— The potential implications of removing
all support from families with children.
1. Role of the Commissioner for Children
and Young People
I took up the post of Commissioner on 26 April
2004, having been appointed by the Queen, on the nomination of
the Scottish Parliament.
The office of Commissioner was established by
the Commissioner for Children and Young People (Scotland) Act
2003. The general function is to "promote and safeguard the
rights of children and young people."[166]
166 Section 4 requires me to review law, policy and practice relating
to the rights of children and young people with a view to assessing
their adequacy and effectiveness. Specific regard must be had
to relevant provisions of the United Nations Convention on the
Rights of the Child (UNCRC), especially those requiring that the
best interests of the child be a primary consideration in decision
making, and that due account be taken of the views of affected
children and young people.
Section 16 defines children and young people
to include:
Natural persons in Scotland who are
under the age of 18 years of, if they have at any time been in
the care of or looked after by a local authority or Northern Ireland
authority, under the age of 21 years . . .
Section 7 empowers me to carry out formal investigations
with associated legal powers. No such investigation may relate
to a matter reserved to Westminster. This submission on immigration
control is presented as an exercise of the duties under section
4, and focuses in particular on the impact of immigration and
asylum law, policy and practice upon the welfare and education
of children in Scotland.
2. About This Response
This response focuses on the asylum dimension
of immigration law, policy and practice and, in particular, the
impact upon children and young people.
It draws upon meetings and other communications
I have had with affected children and young people, their friends,
teachers and members of their communities, and builds upon a paper
I submitted to the European Commissioner for Human Rights in December
2004. This set out my concerns about the children of asylum seekers
and analysed the rights issues involved. A copy of that report
accompanies this submission. [not printed.]
3. The Impact of Fear
I raise this issue at the outset, because those
with a genuine claim to asylum will be living with great fear
of return. The quality of decision-making within the asylum process
is therefore critical. Much of the public debate has been about
the status of "failed asylum seekers." The emphasis
upon their return is logical in terms of international law and
the need to retain the integrity of the asylum system. However,
if the decision-making process results in those with a real basis
for fear being denied asylum and classified as "failed asylum
seekers", this will have an impact on what happens further
down the line in terms of removal.
Much of the debate about modes of removal, including
early morning, unannounced, forced removals ("dawn raids"),
detention, and the use of handcuffs and body armour, is justified
by reference to the risk of absconding if prior notice were given
or a gentler approach adopted. I ask the Committee to consider
the possibility that the risk of absconding will be significantly
higher where the person to be removed has a real and significant
fear of return. In particular, for families with children, the
option of attempting to "disappear" from official scrutiny
within the UK, with the consequent disadvantages in terms of the
impact upon their children and access to services, is likely to
be inherently unattractive and difficult to implement, and to
be chosen only in extreme circumstances.
If the asylum process could be relied upon to
identify justified cases and therefore concentrate its removal
procedures on those who had no true claim, I suggest that the
choices for those to be removed would be easier and there would
be less need for force and fearsome processes, especially where
children are involved.
Concern within the UK about the quality of asylum
decisions is reflected in the recent report of the European Commissioner
for Human Rights, in which he set out his own concerns about the
quality of decision-making and recommended that this be reviewed.[167]
167
4. Finding out What is Really Happening
I would ask Committee members not to be reassured
by policy statements about "humanity" and "dignity",
"pastoral visits", "welfare assessments" and
"risk assessments", but to examine closely how these
policy commitments are translated into practice and experienced
by children and families.
5. United Nations Convention on the Rights
of the Child
My report to the European Commissioner for Human
Rights includes an analysis of relevant articles of the UNCRC
and other international human rights documents. It also explores
the scope of the UK's reservation to the Convention in relation
to immigration and nationality. The UN Committee on the Rights
of the Child has called for the reservation to be withdrawn.[168]
168 However, it might also be argued that the reservation has
been interpreted too widely; that it relates to decisions about
the entry into, stay in and departure from the UK, and not about
the character of their treatment while children are here, which
must therefore still be governed by the rights set out in the
Convention.
6. Immigration Policy and Practice
My comments focus on:
— Detention policy and conditions;
— The removals process; and
— Unaccompanied asylum seeking children;
with some reference to
— The impact of Section 9 of the Asylum
and Immigration (Treatment of Claimants, etc) Act 2004.
6.1 Detention policy
My key concerns are:
(a) The lack of statutory criteria for detention;
(b) Poor administrative decision making;
(c) Lack of alternatives to detention; and
(d) Lack of publicly available statistical
information.
(a) Lack of statutory criteria for detention
Although detention is primarily intended for
those who are denied leave to enter the country, those who are
being "fast tracked" and those awaiting removal, detention
can—and is—used at any stage in asylum proceedings.
The Commissioner for Human Rights expressed concern at the lack
of statutory criteria for detention.[169]
169
(b) Poor administrative decision making
There are two aspects to this: firstly that
the procedure is administrative rather than judicial, and secondly
that even that process is poor.
The decision to detain is taken administratively
by an Immigration Officer acting under the authority of the Chief
Immigration Officer. The European Human Rights Commissioner noted
that it was imperative that any decision to detain children be
taken by a judicial authority.[170]
170
The quality of the decision is dependent upon
the officer's assessment and judgement. Families are not represented
in the process, but once detained, may challenge the decision
or seek bail. The reality of this right was questioned by HM Chief
inspector of Prisons, whose report on the Dungavel Immigration
Removal Centre in Scotland noted that:
"There was little information
provided about how to access good quality legal advice and to
complain if this was not received, and there was some evidence
of exploitative and ineffective representation."[171]
171
The Commissioner for Human Rights also doubted
whether the possibility applications for bail or judicial review
was genuine, and noted that the reasons provided to the detainee
for detention are cursory at best, and any explanation of bail
is technical and perfunctory.[172]
172
It is also important that the Inquiry examines
the "risk assessments" reportedly undertaken before
a decision is made to detain a family, perhaps by tracking some
cases through the system. These should include cases suggested
by agencies working in the field, not just those identified by
the Home Office.
(c) Detention of children
In October 2002, HM Chief Inspector of Prisons'
report on the Dungavel Immigration Removal Centre, commented that:
The welfare and development of children
is likely to be compromised by detention, however humane the provisions
. . .[173]
173
The Inspector "urged" the Immigration
and Nationality Department to introduce an assessment of the welfare
and education needs of each child "as soon as practicable
after detention." This should be repeated at regular intervals
to inform decisions about whether continued detention was in the
interests of that child. She emphasised:
Detention of children should be exceptional
and for very short periods—no more than a matter of days.[174]
174
It is precisely because detention itself is
so adverse to the welfare of children that international law insists
on very strict requirements about it. The United Nations High
Commissioner for Refugees holds, as a matter of policy, that child
asylum seekers should not be detained, while noting that, unfortunately,
they sometimes are. International standards require that children
be detained only as "last resort", and for the "shortest
appropriate period of time." They must have a right to challenge
their detention, and their welfare must be monitored and must
guide decision-making.
There is some doubt as to whether children in
immigration facilities are technically "detained" in
their own right, or merely accompanying their detained parents.
Nevertheless Home Office officials have confirmed (in communications
with myself) that a child would not be allowed to leave the facility
on request. Therefore the children are truly detained for all
practical purposes. The process lacks sufficient emphasis on the
rights and interests of the children involved which may be different
from those of adult family members. Children should, in terms
of article 37(d) of the UNCRC, have independent rights of access
to legal and other appropriate assistance as well as the right
to challenge their deprivation of liberty. Substantial supports
require to be put in place if this right is to be respected.
(d) Lack of alternatives to detention
UNCRC guidelines stress that detention of asylum
seekers should be an exception to the rule. Alternatives should
always be actively considered where children are involved. This
could include reporting requirements, residency requirements or
even "open centres." The Home Office's guidelines also
state that all reasonable alternatives must be considered.
The European Human Rights Commissioner pointed
out that the number of children detained suggested that insufficient
consideration had been given to alternative forms of supervision.
There is little research evidence to support the likelihood of
families to abscond. And indeed, for the reasons set out at para
3 above, they are probably less likely to abscond than most.
(e) Lack of statistical information
Given that the Government's defence of its continued
detention of children is based upon its claim that few children
are detained and for very short periods of time, it is unacceptable
that information about numbers and periods of detention are not
made available for public scrutiny. The "snapshot" statistics
currently published quarterly are totally inadequate. The Government's
response to this question is difficult to understand. On the one
hand, it is argued that "A breakdown by age, period of detention
and removal centre is not regularly included since the numbers
involved would be small and hence contrary to the National Statistics
protocol on data access and confidentiality, which states that
no statistics may be produced that are likely to identify and
individual unless specifically agreed with them."[175]
175 Despite the acknowledged "smallness" of the numbers,
it is argued that these could only be collated "by examination
of individual case files at disproportionate cost."[176]
176 Nor is it clear that publication of numbers would necessarily
identify individuals nor that they would not consent to such identification
if that were likely.
Neither are statistics available on the number
of detained young people whose age is disputed. This is important
because, while the dispute continues, they are treated as adults
and will be mixing with adult detainees.
The European Commissioner for Human Rights concluded
that there is a clear duty on the government to ensure transparency
on issues of such importance.
6.2 Removal processes
The Government seems so concerned to appear
to be in control of asylum that it is resorting to tougher and
tougher measures without sufficient regard to human rights. A
principled and proportionate approach to the issue of removal
is crucial.
There has been considerable concern in Scotland
around the issue of unannounced, early morning, forced removals
involving children. These can involve large numbers of immigration
and police officers who wear heavy, protective stab vests. Evidence
from the communities suggests that children may be awakened by
uniformed strangers. Some children have witnessed their parents
being handcuffed in front of them. I have been told by a credible
source that a recent attempt to handcuff a 14-year-old girl was
averted by the reasoned intervention of her older brother. This
abrupt and insensitive treatment traumatises, not just the children
and families involved, but also their friends, school-fellows
and communities. I have had contact with many teachers and head-teachers
who have urged me to do what I can to have this situation changed.
The Immigration Minister has consistently stated
that early morning removals will continue as they "are a
central plank to a robust and progressive asylum policy".
Whilst appreciating the need for a controlled an effective asylum
policy, this must be one which respects the dignity and human
rights of the family and children. Given the serious implications
for the rights and needs of the children involved, it is difficult
to understand how this kind of approach can ever be justified
as a "central plank" rather than as something entirely
exceptional, undertaken in the interests of the children. Serious
questions must be asked about the "risk assessments"
that reportedly precede this kind of removal.
Article 8 of the European Convention on Human
Rights states that family privacy should be respected. Any intrusion
has to be justified on clear grounds and be proportionate to a
legitimate end. Article 3 of the UNCRC also states that the best
interests of the child must be at least a primary consideration
on any matter affecting them. It is clearly up to those taking
forward this policy to justify its proportionality in all cases
where children are involved.
6.3 Unaccompanied asylum seeking children
I merely note here the ongoing difficulties
posed by assessment of age, as well practical problems such as
the availability of interpreters.
EU Directive 2003/9/EC requires the appointment
of independent representatives or guardians for unaccompanied
asylum-seeking children. The Refugee Council Panel of Advisers,
which provides this service in some parts of the UK, does not
operate within Scotland, therefore these young people lack the
kind of support they are entitled to.
6.4 Section 9 of the Asylum and Immigration
(Treatment of Claimants, etc) Act 2004
Section 9 extends to families with children
the provisions that relate to the removal of support from those
whose asylum claims have failed and who, in the opinion of the
Secretary of State are not co-operating with attempts to remove
them. The accompanying threat is that the children will be removed
from their families to be "looked after" by the local
authority.
This has not yet made an impact in Scotland.
However, there must be serious concerns about the human rights
impact of such a response, as well as its basic practicality.
There would simply not be enough "looked after" places
to accommodate any more children, least of all those with caring
families whose need is based purely on material considerations.
Nor should policy-makers underestimate the impact that the possibility
of such action might have on the mental well-being of families
and children. I have been told anecdotally about children "whispering
in the playgrounds" about the possibility of being removed
from their parents in these circumstances. I cannot evidence this,
but it rings true. We must surely avoid strategies likely to instil
such fear in the hearts of innocent children.
Kathleen Marshall
Scotland's Commissioner for Children and Young
People
7 December 2005
166 166 Commissioner for Children and Young People
(Scotland) Act 2003 Section 4. Back
167
167<hi1p0>Gil-Robles, A, A Report by Mr Alvaro Gil-Robles,
Commissioner for Human Rights on His Visit to the United Kingdom,
4-12 November, 2004. Council of Europe, Strasbourg, 8 June
2005, paras 68-70 and Rec 11. Back
168
168 Concluding observations of the Committee on the Rights of
the Child: CRC/C/15/Add.34. 1995. Back
169
169<hi1p0>Report by Mr Alvaro Gil-Robles, Commissioner
for Human Rights, on his visit to the United Kingdom 4-12 Nov
(Council of Europe, 8 June 2005). Back
170
170 Ibid. Back
171
171 Owers, A, An Inspection of Dungavel Immigration Removal
Centre. London HM Inspectorate of Prisons 2002 p 16. Back
172
172<hi1p0>Report by Mr Alvaro Gil-Robles, Commissioner for
Human Rights, on his visit to the United Kingdom 4-12 Nov (Council
of Europe, 8 June 2005). Back
173
173<hi1p0>Owers, A, An Inspection of Dungavel Immigration
Removal Centre. London: HM Inspectorate of Prisons, 2002.
This quote is from the Introduction on page 7, dated July 2003.
This insight is repeated at page 46 and page 50 (para 9.23). Back
174
174 Ibid, page 16. Back
175
175<hi1p0>Quotations from a response by Des Browne, Minister
of State, to questions posed by the author of this paper (Kathleen
Marshall), in correspondence dated 20 October, 2004. Back
176
176 Ibid. Back
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