Memorandum submitted by the Refugee Children's Consortium (UKB 5)

 

SUMMARY

 

1. The Refugee Children's Consortium (RCC) is a group of NGOs working collaboratively to ensure that the rights and needs of refugee children are promoted, respected and met in accordance with the relevant domestic, regional and international standards

 

2. The RCC's primary points of concern in relation to the Bill at this stage are:

The lack of safeguards in the treatment of asylum-seeking children under existing and new powers introduced by this Bill

How biometric registration will work in respect of children

Reporting and residence conditions (cl.16), particularly for Unaccompanied Asylum Seeking Children (UASC)

Trafficking

 

3. The RCC would like to see:

The extension of the duty to safeguard and promote the welfare of children in s.11 Children Act 2004 to immigration authorities

Clarification of how biometric registration will be used in relation to children - the process of taking biometric data from children, and how this data will be stored and used

Clarification of the purpose of cl.16, and assurances that it will not adversely affect asylum seeking children

The Government to sign and ratify the UN Council of Europe Convention on Action Against Trafficking in Human Beings as soon as possible

The repeal of s.9 Asylum and Immigration (Treatment of Claimants etc.) Act 2004

 

INTRODUCTION

 

4. Refugee and asylum-seeking children are children first and foremost and must be afforded the same rights and protection as any other child in the UK. Children and families face a complex legal process to determine their application, inadequate systems to address their accommodation and living needs, and unique menaces, such as the threat of detention.

 

5. The United Nations Convention on the Rights of the Child (UNCRC) provides a critical standard against which the UK's treatment of refugee children must be assessed. The Government should use the provisions of the UNCRC as its guiding principles on all matters relating to refugee and asylum-seeking children. In October 2002, the Committee on the Rights of the Child - the treaty monitoring body for the CRC - said that the Government should "address thoroughly the particular situation of children in the ongoing reform of the immigration and asylum system to bring it in line with the principles and provisions of the Convention".[1]

 

6. Council Directive 2004/83/EC of 29 April 2004 also provides minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection, and the content of the protection granted. Article 24 of the Directive is based on the UNCRC and states that 'children shall have the right to such protection and care as is necessary for their well-being'; and that 'in all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration'.

 

7. Additionally this Bill must be judged against the Government's own standards, priorities and outcomes for all children as set out in the Green Paper, Every Child Matters (Cm. 5860, September 2003): to ensure that all children are supported to be healthy, stay safe, enjoy and achieve, make a positive contribution and enjoy economic well-being.[2] These outcomes should be the aspiration for all children regardless of immigration status. One example of the violation of this principle that has been drawn to our attention recently is the case of HIV-positive children in the UK being denied access to the necessary health care because immigration controls are taking precedence over their health.[3]

 

8. The Government must ensure compatibility of all legislation with its current agenda for children - this will necessitate significant changes to existing asylum law. In particular we believe that this Bill provides the Government with an opportunity to address specific concerns about the treatment of children seeking asylum; for example to repeal section 9 of the Asylum & Immigration (Treatment of Claimants etc...) Act 2004 to ensure that children and families are never left destitute or placed at risk.[4]

 

9. This memorandum identifies areas of concern in the Bill and identifies gaps and omissions that the Refugee Children's Consortium believes need to be resolved

 

SAFEGUARDING CHILDREN

 

10. Clauses 1- 4 introduce new powers for the Secretary of State to give designated immigration officers the power to search and detain individuals, using reasonable force if necessary, where they believe that that an individual may be liable to arrest or is subject to an arrest warrant. These clauses make it an offence to abscond from detention or to assault or obstruct an immigration officer in the exercise of this power. These new offences carry heavy penalties of either a level 5 fine or imprisonment of up to 51 weeks.

 

11. These clauses broaden considerably the scope of immigration officers to detain and search, as these are powers that they currently only have in relation to immigration offences. While we accept that the intention behind them is, at least in part, to facilitate the better detection and prevention of serious offences such as people trafficking, we fear the breadth of the powers as currently drafted, and lack of any safeguards or limitations, is likely to lead to a significant number of children, whether unaccompanied or in families, seeking asylum being subjected to these powers.

 

12. It will be imperative that these powers are only exercised in accordance with the Police and Criminal Evidence Act (PACE) Codes of Practice which provide the framework within which the police currently operate powers of arrest. For example when children are detained under these powers the immigration officer should have a duty to request the attendance of an Appropriate Adult. Also of concern are the conditions in which those subject to these powers will be detained. Recent reports published by Anne Owers, Chief Inspector of Prisons, on immigration short-term holding facilities (STHF) noted significant ongoing concerns relating to poor access to information and independent legal advice and reports from detainees that they felt unsafe in the centres. Some centres, including that at John Lennon Airport in Liverpool, hold children for short periods and it was noted that in these there was evidence of a need for staff training in the care and protection of children.[5]

 

13. Although we acknowledge that clause 1 does refer to "suitable training" for designated immigration officers we have concerns that this will be inadequate, and will not meet the threshold set out for child protection in UK law, without specific training requirements relating to the protection of children and young people. This is especially so in light of the fact that the Government resisted any statutory requirement on immigration authorities to have regard to the need to safeguard and promote the welfare of children under s. 11 of the Children Act 2004 during the passage of the Immigration, Asylum and Nationality Act 2006.

 

14. We have similar concerns in relation to the extension of immigration officers' powers in clauses 20 - 26 and clauses 36 - 41 of the Bill. Even where these powers will not be exercised directly in relation to children there is significant scope for them to be affected by them. For example if children witness immigration officers forcing entry to their homes to seize documents in accordance with the powers outlined in clauses 40 and 41 the impact is likely to be significant. We already know that during the process of removing failed asylum seekers from the UK incidents are occurring in which significant harm is being inflicted on children both physically and mentally. In 2004 a research project by RCC member, The Medical Foundation for the Care of Victims of Torture, uncovered claims from a number of individuals who were subjected to the excessive or gratuitous use of force during an attempt to remove them from the UK. In at least one case children witnessed the incident.[6] During the passage of the Bill we will be seeking assurances that these powers will be exercised only when adequate safeguards are in place to protect children and young people.

 

BIOMETRIC REGISTRATION

 

15. Clauses 5 - 15 introduce requirements on persons subject to immigration control to apply for biometric immigration documents. Regulations will specify whether these provisions apply generally or to specific classes of person subject to immigration control, The penalty for failing to comply with requirements to register for a biometric immigration document is set out under cl.9, and can be a fine of up to 1000 (cl.9(3)), although this amount can be amended by Order 'to reflect a change in the value of money' (cl.9(6)). These provisions are age blind. The only reference to age is in cl.6(3) which states that where under 16s are to provide biometric information the relevant regulations must be similar to s.141(3)-(5) and (13) Immigration and Asylum Act 1999 (which sets out the procedure for fingerprinting under-16s).

 

16. The Refugee Children's Consortium is concerned about extending any provisions for biometric registration documents to under-18s. Article 16 of the UNCRC and Article 8 of the European Convention on Human Rights (ECHR) provide children with the right to respect for their private and family life without unlawful interference. Without full details of how the Government plans to use such a registration scheme it is not possible to determine whether its application to under-18s would be in accordance with their rights under Article 16. If the registration scheme is to be used to regulate access to public services, additional UNCRC rights such as that defined in Article 24, which grants the right to access healthcare services, would also be engaged.

 

17. Furthermore we query how biometric registration could ever be fairly and effectively implemented for children. At the time that the Identity Cards Act 2006 was debated the Minister, Baroness Scotland of Asthal stated that the Government 'have no immediate plans to reduce the age below 16 as the cost of doing so far outweighs any benefits that may arise. This is due to the fact that children have unstable biometrics which would result in them frequently having to re-register'[7].

 

REPORTING AND RESIDENCE CONDITIONS

 

18. Clause 16 gives the power to impose reporting and residence requirements to those with discretionary leave, humanitarian protection and refugee leave. It enables conditions about residence to be set which could include conditions such as curfews or a requirement to live in a particular location. We are also concerned about an ongoing requirement to report that would have an impact on the emotional and mental health of young people who are often very afraid of being returned home. We believe this an unnecessary, unfair and costly measure, sending out a powerful signal to people who have been given some leave that they do not belong in the UK. In practical terms we think it is difficult for people to travel to reporting centres (as many cannot afford the fares and have to walk) particularly for families with young children. In addition it is very disruptive to education. Our existing experience of over 17's who have to report is that no concession is given to the fact that they are in full-time education.

 

TRAFFICKING

 

19. We welcome clause 27 of the Bill, which extends the anti-trafficking measures introduced in the Sexual Offences Act 2003 and the Asylum and Immigration (Treatment of Claimants etc.) Act 2004. The Government's commitment to tackling trafficking was demonstrated by its recent decision to sign the UN Council of Europe Convention on Action Against Trafficking in Human Beings.[8] We urge the Government to sign and ratify the Convention as soon as possible; and await the publication of the Government's Trafficking Action Plan that we hope will set out steps for turning these commitments into reality and in particular to improve the level of security and support granted to victims of trafficking.

 

GOOD CHARACTER

 

20. The Immigration, Asylum and Nationality Act 2006 introduced a good character test for aspiring British citizens. The RCC supported calls at the time that this should be waived for refugees who, by virtue of their refugee status, have no other effective citizenship. We raised particular concerns that children may gain convictions for minor offences that are subsequently used to deny them citizenship for the rest of their lives. The Government responded by exempting children under the age of 10. Clause 39 restates the power of the police to provide information for the purposes of determining whether a person is of good character. We remain concerned about the way in which this can be used as there are no limits on the sort of information that can be taken into account.

 

DETENTION OF CHILDREN

 

21. We are very disappointed that this Bill is once again silent on the detention of children under current immigration act powers. These provide for detention without charge or trial, for an unlimited time and without the automatic supervision of any court. In the light of the recent damning reports about the failure to protect children and safeguard their welfare and subsequent recommendations of Her Majesty's Inspectorate of Prisons (HMIP)[9] this opportunity to change the law should not be missed. Reports from HM Inspector of Prisons about Tinsley House and Dungavel stress that no progress had been made in relation to independent assessment of the welfare and developmental needs of children, and that even the internal procedures laid down for detaining children were not being followed.

 

22. Detention centres cannot afford children the protection and care they need, nor uphold their rights under human rights law and international instruments; including rights to freedom, to a normal social life, and to education. Detention facilities are never the best environment for children and can badly affect their physical, and emotional, health and wellbeing[10].

 

SUPPORT FOR UNACCOMPANIED ASYLUM SEEKING CHILDREN

 

23. We have strong concerns about the Home Office decision to grant unaccompanied children leave until they are 17 and a half, instead of 18, from the 1st of April. This will have implications for the way in which they are supported. Support for former unaccompanied children (when they reach 18) is already highly variable, and we are concerned that this will create more uncertainty and instability for children as they approach the age of majority. Irrespective of the leave granted by the Home Office unaccompanied children remain children until they are 18. Provision of support must be on the basis that they are children, not on the basis of their immigration status.

 

CONCLUSION

 

24. The UK Government has been subject to severe criticism from the United Nations Committee on the Rights of the Child (UNCRC)[11] and the Joint Committee on Human Rights[12] about its treatment of asylum-seeking children. In particular both Committees have called upon the Government to withdraw its general reservation on immigration and citizenship. The reservation allows the UK to pass immigration laws without reference to the Convention and continues to result in proposals such as those in this Bill, which remove refugee children's rights to care and protection even further

 

25. We believe that until the UK Government withdraws this reservation to the Convention it will be impossible to ensure that legislation operates within the framework of the United Nations Convention on the Rights of the Child, the Children Act 1989, Children Act 2004, Children (Scotland) Act 1995 and Children (Northern Ireland) Order 1995. We call on the UK Government to demonstrate its commitment to the outcomes for children identified by the Department for Education and Skills in Every Child Matters by withdrawing this reservation.

 

February 2007



[1] Committee on the Rights of the Child (2002) Concluding Observations on the United Kingdom of Great Britain and Northern Ireland Paragraph 47.

[2] The equivalent strategy documents in Scotland and Northern Ireland are Getting it Right for Every Child and Children and Young People - Our Pledge: A ten year strategy for children and young people in Northern Ireland 2006 - 2016, respectively.

[3] Children and Young People HIV Network (2006) Children, HIV, asylum and immigration

[4] In 2005 RCC member Barnardo's published The End of the Road: the impact on families of section 9 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 which was based on research with 23 local authorities. All were clear that s.9 runs counter to their established welfare duties and practice under the Children Act 1989. www.barnardos.org.uk/the_end_of_the_road_asylum_report_summary.pdf

[5] Home Office/IND Press Release (January 2007) Immigration holding facilities - still some systemic problems http://www.ind.homeoffice.gov.uk/aboutus/newsarchive/immigrationholdingfacilities

[6] Granville-Chapman, C., Smith, E., Moloney, N. (2004) Harm on Removal: Excessive Force against Failed Asylum Seekers, Medical Foundation for the Care of Victims of Torture.

[7] Lord Hansard, 23 November 2005, Col 1681

[8] Home Office (January 2006) Tackling Human Trafficking - Consultation on Proposals for a UK Action Plan

[9] Inspections took place on the following dates: Dungavel (14-16 December 2004 and 7-10 October 2002) Scotland, Tinsley House (1-5 November 2004 and 18-20 February 2002) Gatwick Harmondsworth ( 16- 18 September 2002) Nr Heathrow, Oakington (4-6 March 2002) Cambridgeshire,

[10]See for example, Save the Children Fund UK (2005) NO Place for a Child: Children in UK immigration detention: Impacts, alternatives and safeguards.

[11] Concluding Observations of the Committee on the Rights of the Child: United Kingdom, October 2002

[12] The Joint Committee on Human Rights: The UN Committee on the Rights of the Child, Tenth Report of Session 2002-03, HL Paper 127, HC 1279