Immigration Bill Committee

Written evidence submitted by Adrian Matthews, Policy Advisor, Office of the Children’s Commissioner for England (IB 07)

Views on the Immigration Bill 2015

My views are provided within the context of the statutory function of the Children’s Commissioner for England as revised by the Children and Families Act 2014. That primary function is to promote and protect the rights of children in England and to promote their views and interests. In considering what constitutes the rights and interests of children, the Children’s Commissioner must have regard to the United Nations Convention on the Rights of Child, an international treaty which the United Kingdom ratified in 1991, lifting its reservation in respect of children subject to immigration control in November 2008.

As is well known, the lifting of the reservation to the UNCRC paved the way for s.55 of the Border’s , Citizenship and Immigration Act 2009 providing for a duty on the Secretary of State to make arrangements for ensuring that immigration and asylum functions are discharged having regard to the need to safeguard children and promote their welfare.

My concern is that some of the provisions in the current bill appear to override that duty and are also inconsistent with the UK’s obligations under the UNCRC. I would point in particular to Article 3 (1) which requires that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Specific clauses that are of concern

Some of the measures in the Bill, while not directed specifically at children, will in my view result in their becoming collateral damage to a wider policy agenda. This is not treating their best interests as a primary consideration as is required in law.

Clause 34 and Schedule 6

The 4 UK Children’s Commissioners submitted a detailed response to the recent Home Office consultation Reforming Support to failed asylum seekers and other illegal immigrants. Clause 34 and Schedule 6 are intended to give effect to some of the central proposals in that consultation.

The Children’s Commissioners are firmly of the view that removing support from families where their asylum claim has been rejected is highly unlikely to lead to the ‘behaviour change’ that the Government envisages but rather will lead to families becoming destitute, placing children in dangerous circumstances. Some families will disappear – making it harder to engage with them around a planned departure, others will turn to already overburdened local authorities for accommodation and support while others will seek to put their children into the care of local authorities. These outcomes are evidenced from a previous pilot conducted by the Home Office in 2005.

Clause 31

This clause, in part removes existing restrictions limiting the use of the ‘certification’ power to those liable to deportation. The effect of certification is that an appeal against the decision can only be brought from outside the UK. Other parts of the clause aim to extend the certification power beyond appeals related to removals so that they also include circumstances where the subject is refused entry or required to leave the UK. The limitation on the power is if the subject would be at ‘real risk of serious and irreversible harm’ but this judgement would be made by a case owner in the Home Office rather than be subject to judicial scrutiny before departure or removal.

One effect of the clause if enacted would be to split families – for example where a foreign national parent subject to immigration control was the partner or spouse of a British Citizen and had British children. Another effect will be the uprooting of families whose children may have known no other life than in the UK.

The practicalities of appealing from abroad would make it very difficult for a parent or family who had departed to have an effective remedy in the UK courts.

Clause 30

The proposed new power under clause 30 (1) inserts a new sub-section 3A into section 3C of the ‘71 Act. It states: Leave extended by virtue of this section may be cancelled if the applicant – (a) has failed to comply with a condition attached to the leave or (b) has used or uses deception in seeking leave to remain (whether successfully or not)

Section 3C is frequently invoked by unaccompanied children whose asylum claims have been refused but who have been granted a period of leave to remain in the UK until age 17 ½ as there are no suitable reception arrangements for them to return to in their home country.

Currently, if such a child applies to extend that leave before it expires their leave is continued by virtue of 3C until a further decision is made allowing them to remain ‘lawfully present’ and therefore to work or receive benefits in line with their leave conditions (as well as operate a bank account, rent privately or have a driving licence).

Recent research from the Children’s Commissioner has shown that nearly half of all unaccompanied children in a sample of over 100 new entrants were age disputed – mostly by adjusting the age upwards by a few years. Under Clause 31, evidence of a different conclusion reached by a local authority as to the age of the child than what was claimed on entry could be deemed as ‘the use of deception’ and therefore their 3C leave fall to be cancelled under the new power under 30 (1) (b).

While there would be an obligation on the local authority to continue support to anyone whose age they had disputed but whom they had nevertheless accepted as a child until they reached the (local authority )assessed age of 18, the impact of cancelling the continued leave while awaiting a decision on the extension application or an appeal arising from the further decision would be to render them without support as soon as they turned 18 (assuming 3C leave had been cancelled while they were still a minor) even if awaiting a further decision or an appeal.

Clause 8: Offence of illegal working

This appears likely to affect parents who may be trying to regularise their immigration position following expiry, curtailment or termination of leave in a number of circumstances. Where parents are unable to provide for their children through fear of criminal sanctions against them for working illegally and cannot leave the country they are likely to turn to local authorities for support under s.17 of the Children Act 1989 thus straining already overburdened services. Alternatively it may lead to parents enduring ever more casual, precarious and dangerous employment in order to provide for their children.

It may also effect former unaccompanied children who are waiting for an appeal against refusal of a protection claim and who thus have a legitimate reason for being here but who have been cut off from any further local authority support perhaps because cancellation of their 3C leave.

October 2015

Prepared 21st October 2015