Select Committee on Home Affairs Written Evidence

33.  Memorandum submitted by Scotland's Commissioner for Children and Young People


  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 IbidBack

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 IbidBack

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