Nationality and Borders Bill

Written evidence submitted by The Children’s Society (NBB 56)

Nationality and Borders Bill 2021

1. Introduction and Summary

 

1.1 The Children’s Society is a leading national charity committed to improving the lives of thousands of children and young people every year. We work across the country with some of the most disadvantaged children and young people through our specialist services. We place their voices at the centre of the work that we do.

1.2 Amongst the children and young people we support are unaccompanied children and young people seeking international protection, children in asylum-seeking families, victims of modern slavery, and others with an irregular, uncertain or unresolved immigration status. In 2019, we provided support to 1,496 children and young people who are refugees, asylum-seekers, or vulnerable migrants. Evidence from our frontline services as well as from further research The Children’s Society has conducted forms the basis of this evidence submission.

1.3 The Children’s Society has long called for a fairer immigration system: a system that is efficient, fair and treats children with dignity and compassion, no matter their nationality or immigration status. We agree the Asylum system needs to be reformed – the Youth-Led Commission for Separated Children [1] have told us about the challenges they have faced and how slow and complex the system is. We have also seen this through our frontline services working with asylum-seeking children and families over the last twenty years.

1.4 The Nationality and Borders Bill proposes a number of radical changes to the Asylum system, but it will in no way achieve a ‘fairer’ immigration system as it aims. This Bill is a missed opportunity to address the system’s most fundamental failings. It does not address why people are forced to take dangerous journeys to seek safety or the record backlog of people waiting for asylum decisions from the Home Office on their claim . Instead, this Bill’s proposals breach the UK’s international commitments to provide sanctuary to those in need and fail to heed the Secretary of State’s duty to safeguard the welfare of children and young people. If made law, the Nationality and Borders Bill will endanger and thwart the life chances of some of the most vulnerable children in our society.

2. Assessment of Impact on Children

 

2.1 In November 2018, the Minister for Children reiterated the government commitment made in 2010 to ‘give due consideration to the UNCRC articles when making new policy and legislation’ [2] . There is no evidence such consideration was given in formulating the Nationality and Borders Bill

.

2.2 On its face, the Bill fails to address how its provisions, particularly with respect to inadmissibility and differentiated treatment, will apply to unaccompanied children and young people seeking asylum as well as children in asylum-seeking families.

2.3 A Child Rights Impact Assessment would serve this purpose. A Child Rights Impact Assessment (CRIA) involves examining laws, policies, and changes to public services to determine their impact on children, and whether they comply with and indeed further the implementation of the UNCRC [3] . The impact assessment considers the direct or indirect impact of domestic legislative, policy or administrative decisions on either an individual child, specific groups of children, or children generally – often with a focus on the most vulnerable or marginalised. These impacts can be short, medium or long-term.

2.4 The significance of a CRIA is underscored by the international community’s historical recognition - in the Universal Declaration of Human Rights, the Declaration of the Rights of the Child and the UNCRC [4] - that children, due to their immaturity and developing capacity, require special safeguards, care and legal protection.

2.5 While an Equality Impact Assessment [5] for the Bill was published on 16 September 2021, no parallel CRIA was published nor does the Bill contain any provision to suggest that child rights impact assessments will be made of new rules or regulations created under it.

2.6 Further, having now tabled amendments to replace the Clause 58 placeholder in relation to age assessments, the Government has provided no accompanying assessment of these amendments’ compatibility with Convention rights as promised in its original Human Rights Memorandum [6] . Nor is there any indication an Equality Impact Assessment or CRIA will be published with respect to these amendments which directly and unquestionably impact children. We have yet to understand how these amendments uphold the best interest of the child and promote their welfare.

3. Impact of ‘Differentiation’ on Children

 

3.1 The Children’s Society supports asylum-seeking children, young people and families once they have arrived in the UK. Our area of expertise is not the means by which asylum-seekers have arrived. Yet our starting point, like most others, is that seeking asylum is a universal human right enshrined in international law (specifically Article 14 of the Universal Declaration of Human Rights), whatever the means of travel and arrival.

3.2 The Nationality and Borders Bill’s measures to differentiate asylum-seekers into two groups (Clause 10), limiting their access to refugee status and treatment squarely based on their means of arrival, violates the UK’s commitments under the UN 1951 Refugee Convention. As the UNHCR rightly set out in its response to the New Plan for Immigration [7] and its written evidence [8] , the Bill’s measures are based on a misconstruction of Article 31 of the Refugee Convention – underscored by the Bill’s attempt to define the terms of this Convention in domestic legislation (Clause 34). This misconstruction undermines the international refugee protection system, of which the UK has historically been a leader.

3.3 With respect to children, the Bill’s proposals to differentiate refugees and their treatment violates the UK’s commitments under the UN Convention on the Rights of the Child, including to uphold the best interests of the child (Article 3 [9] ), to protect asylum-seeking children (Article 22 [10] ), and to provide physical and psychological as well as social re-integration for child victims of armed conflict, amongst others (Article 39 [11] ).

3.4 Differentiation also fails to recognise the practical reality that with very limited safe and legal routes available, asylum-seeking children and adults are left with little option but to choose dangerous ‘irregular’ means of arrival to the UK. While refugee resettlement is certainly a needed route, it is a limited one – both in terms of availability and means for selection - and cannot be the only legal route made available if the UK is to meet its obligations to persons seeking asylum at its borders.

3.5 Unequal treatment of persons recognised as requiring protection – as intended for Group 2 refugees – breaches numerous commitments under the Refugee Convention [12] . Pushing such refugees into further insecurity and limbo with a precarious temporary status and with no recourse to public funds (NRPF) will have a serious detrimental impact on their recovery, well-being and futures. And as research by The Children’s Society has found, it will critically impact on their children’s outcomes, life chances and well-being, and increase their vulnerability to exploitation.

3.6 Our A Lifeline for All [13] report shines a spotlight on how the NRPF policy has a detrimental impact on children and young people, pushing thousands into abject poverty. NRPF families we have worked with live hand-to-mouth for years, experiencing homelessness, unable to pay for food and other essentials, and facing spiralling debt, due to their inability to access mainstream benefits and vital support, particularly in times of crisis. As a consequence, children in these families live in deep poverty throughout their childhood and into adulthood. Tellingly, in recent cases brought by children, the High Court has held the NRPF policy unlawful in causing inhumane and degrading treatment in violation of Art. 3 of the ECHR [14] and for breaching the duty to safeguard child welfare [15] .

3.7 A young person supported by The Children’s Society, who was left undocumented when her claim for asylum was initially rejected, explained the mental impacts of having no access to support: "I couldn’t get support from children services and I was facing destitution and homelessness…Living that life of being frozen in time and not able to do anything and not able to move on with your future is hard. If I didn’t have the strength, I think I would have taken my own life."

3.8 Per its express clauses on differential treatment, the Nationality and Borders Bill will now subject thousands more children to this end, simply based on how their families arrived in the UK.

3.9 In addition, the application of differentiation, temporary status and the NRPF condition, will heighten the conditions for exploitation and make such refugee families and children extremely vulnerable to modern slavery and human trafficking. The Bill’s proposals thereby stand in sharp contrast to the Modern Slavery Act and the UK’s efforts to establish itself as a global leader in tackling these crimes.

4. Penalisation of ‘late evidence’

 

4.1 The Bill seeks to establish a new, reinvigorated ‘one-stop’ process for asylum, human rights and modern slavery claims, limiting appeals and penalising those providing late evidence. These measures will have dire consequences for children and young people.  We are particularly concerned by the clauses providing for evidence and information notices (Clauses 16 and 46), late evidence to damage a claimant’s credibility (Clauses 17 and 47) and requiring deciding authorities to apply minimal weight to late evidence (Clause 23).

4.2 The Children’s Society has supported many asylum-seeking children and young people who have had to go through the appeals process and have had to present new claims or evidence in later proceedings. These children and young people are unlikely to set out the breadth of their claims and evidence in the first instance. This is not due to any weakness in their claims, but rather the impacts of the journeys they endured and the consequent trauma, as well as a direct result of poor initial legal representation.

4.3 Asylum-seeking children and young people have often experienced traumatic events in their journeys prior to arrival in the UK. This can include:

· Coming under combat fire and bombarding;

· Destruction of homes and/or schools;

· Separation from, and disappearance of, parents, family members and friends;

· Witnessing violence and death;

· Prolonged danger and perilous journeys.

Some of these young people will have experienced forced conscription, arrest, detention, sexual violence, physical injuries and torture. [16] Many will have endured extremely traumatizing journeys, will still be working through the atrocities that led them to flee and seek refuge, and will rightly be uncertain of whom they can trust.

4.4 We often find that it is not until they have built a trusting relationship with a support worker and have been supported therapeutically, that they are able to share their full stories and the more personal details. But this can take time. As one of our mental health practitioners set out:

"Sometimes, with the traumatic experiences, they don’t even start talking about the trauma before a year of you trying to get their trust and working with them."

4.5 Added to this, we know from the young people we support how stressful and triggering Home Office interviews and processes can be. Trauma can manifest itself in complex ways, including memory loss, and the act of retelling their stories to multiple professionals and being repeatedly questioned can traumatise young people. [17] Another mental health practitioner made the connection clear:

"if you think about previous trauma and not being [secure], having to flee…and that sense of not having a place of safety…it’s all linked. A trauma response is all about not being believed and not being understood."

4.6 This failure to account for the impact of trauma on the ability of children and young people to engage and disclose is particularly striking in respect of young victims of modern slavery and human trafficking (Clauses 46 and 47). The Government’s own statutory guidance recognises that trauma significantly impacts the ability to disclose exploitation. [18] Child trafficking is a form of child abuse, and survivors may be unable to provide effective disclosure even in adulthood. [19] The ability to engage with processes may also be hampered by symptoms of depression, anxiety and post-traumatic stress disorder common for child trafficking survivors. Some young people may feel shame in disclosing and others may fear being separated from their family through being taken into care. Again, victims need time and a sense of safety before they can begin to disclose their experiences. Penalising children and young people for adding to their evidence late will hamper their abilities to disclose and substantiate their claims, and thereby undermine the alleged overriding objective of holding perpetrators to account. It will also lead to incorrect, life-determining decisions for children and young people.

4.7 Alongside such trauma, asylum-seeking children and young people receive very little support in navigating the asylum system. As one young person reflected of his experience:

"When I went to my screening interview, it was scary. I had to go to Croydon. My foster parent came with me, and he didn't know anything about the process. He didn’t bring all the paperwork we needed as he wasn’t trained to know how to support children in the asylum system." 

4.8 All too often these children and young people receive poor, initial legal advice which leads to the rejection of their claim. With specialist support, we are able to refer them to a quality solicitor who can support the young person with presenting correct evidence and working sensitively with them to develop a coherent witness statement, with the claim ultimately accepted on appeal.

4.9 As one young person, supported by The Children’s Society, reflected on his initial legal presentation and experience providing evidence:

"My first court hearing was horrible, my solicitor advised me to not answer every time anyone asks you any questions. However when I got the refusal letter from the judge, it said it was because I hadn’t answered any of the questions. As soon as I changed solicitor, my solicitor told me to appeal, prepared an expert report and told me to speak in court this time round and finally my case was accepted."

4.10 Given the complex legal requirements placed on an individual, particularly children, claiming asylum, working with a firm that has experience and expertise in representing children in the asylum process is critical. Having a good solicitor can make a significant difference in young people feeling able to give instructions and to submit a thorough asylum claim versus presenting further claims and evidence at later stages.

4.11 Unfortunately, due to legal aid funding cuts, many asylum-seeking children and young people struggle to access quality legal advice. The availability of high quality legal advice under legal aid contracts or on a charitable basis is both patchy and frequently limited. The number of legal aid providers has dwindled due to legal aid cuts, creating a dearth of legally-aided advice for asylum-seekers. [20]

4.12 Failing to appreciate the lack of available support and to account for the realities of what these children and young people have experienced means that they will be subject to further trauma through the process and unjust, life-determining decisions for these children and young people will be made.

4.13 The Immigration Minister’s assurance in the Public Bill’s Committee meeting on Part 2 of the Bill that good reasons for providing evidence would refer to children was welcomed. However, it is vital that this is clarified on the face of the Bill. If such assurance is left to case-by-case decision-making, it will again put vulnerable groups such as children at risk.

5. Disqualification from protection

 

5.1 Clause 51 seeks to preclude victims, including child victims, who have served custodial sentences of over a year, as well as those prosecuted for particular offenses, from being identified as victims through the National Referral Mechanism (NRM) and receiving protection. We are concerned by the impacts this clause will have on both British and foreign national children, particularly children who are victims of child criminal exploitation (CCE) given that it is the most commonly reported form of child abuse into the NRM. [21]

5.2 Child criminal exploitation is not defined in legislation [22] but is increasingly prevalent. [23] In 2020, 47% of referrals to the National Referral Mechanism (for potential victims of modern slavery) were for people exploited as children – criminal exploitation accounted for the majority of referrals for children (51%). [24]

5.3 Awareness of the ‘county lines’ model – where criminal groups use children to deliver drugs from one area to another – is growing. But other forms of exploitation remain misunderstood by professionals and agencies, including: when children are exploited in cannabis factories, used for financial fraud, to steal cars, carry weapons or even forced to threaten violence against others for their own survival.

5.4 In recent years, drug and weapon offences – issues often associated with exploitation via ‘county lines’ – have seen the biggest increase for first time entrants (FTEs) to the youth justice system. The offence groups that have seen the largest percentage point increases compared with ten years ago are: (a) Possession of Weapons offences, increasing by 16 percentage points; (b) Drug offences, increasing by 5 percentage points; and (c) Violence Against the Person and Robbery, which both increased by 4 percentage points. [25] Many first-time entrants into the justice system are aged just 10-12 and 13-14.

5.5 Given the significant overrepresentation of children among those exploited for criminality and that average custodial sentence length given to children has increased from 11.3 to 18.6 months in the last ten years [26] , Clause 51 will detrimentally and disproportionately impact child victims, preventing them from accessing the victim identification procedure of the NRM and accessing protection.

5.6 As such, this clause is incompatible with duties on local authorities and the Home Office to safeguard and promote the welfare of children. The Children’s Society’s research [27] shows child victims of modern slavery and trafficking fall through the gaps in services, and are often left to be victimised again and again. This is particularly true with child victims of criminal exploitation, where the boundaries between a child being a victim of modern slavery and a perpetrator of a crime committed because of exploitation are blurred. Child victims of modern slavery need a child protection response and must be identified to receive a trauma informed safeguarding response to prevent them being ‘re-victimised’ or from future reoffending. Clause 51 will deny child victims this crucial protection.   

5.7 Worryingly, in denying children from being recognised as victims of modern slavery and trafficking, it will also reduce the need and the ability to investigate and prosecute those who have exploited children.

5.8 Within the context of an already inadequate response towards child trafficking and exploitation, this clause will increase the vulnerability of children being exploited and is likely to lead to significant risks of re-trafficking while undermining the Government’s aim of holding perpetrators to account.

6. Age Assessments

 

6.1 Clause 58 of the Bill served as a placeholder allowing the Secretary of State to make future provision for reform of the age assessment process.  On 20 October 2021, the Government tabled amendments (N ew C lauses (NC) 29 -37). Due to the limited time now available, the below entails our initial response to the amendments. [28] We would stress , however, that such c ha nges , which will have a significant impact on vulnerable children , need to go through careful parliamentary and expert scrutiny.

6.2 We are concerned that the reforms as proposed will cause significantly increased trauma and hardship for young people,  while not resolving the government’s concerns around adults falsely claiming to be children .  

6.3 Age assessments have serious, negative impacts on the mental health and well-being of y oung people who face intensive questioning throughout the process. Previous research by The Children’s Society and Refugee Council has found that age assessments create difficulties for many young people, especially those that are facing additional vulnerabilities, such as being trafficked. [29]   The age assessment process can be a shocking and daunting experience when these children are already struggling.

6.4 To offer some perspective, an unaccompanied young person’s age might be the one fraction of their former life that they have been able to bring with them. Having this placed into question can disrupt their sense of self. As one of our practitioners illustrates:

"One young person said that his age was what his mum told him, which was then discredited. It was the one thing he had to hold onto from his mum. As well as practical consequences of age dispute, there is a real injury when young people are constantly questioned. There are guidelines on age assessments, they should have benefit of the doubt, but it is hard to see that working for young people."

6.5 We have seen age assessments cause mental health distress for young people at a number of points:

· When their identity is challenged and questioned as untrue

· When they are potentially prevented from accessing support as a child, because they have been assessed as being an adult

· In the long-term, if they are unable to access CAMHS or other mental health support that is available for children. [30]

6.6 For these reason s , official guidance is clear that age assessments ‘should not be a routine part of a local authority’s assessment of unaccompanied or trafficked children’. And that they ‘should only be carried out where there is reason to doubt that the individual is the age they claim’. [31]

6.7 Nonethele ss, the reforms outlined in NC 29 -37 are likely to increase the number of age assessments undertaken and raise concerns as to the quality of the decision making and whether the reforms are in fact for the benefit of children and their welfare. Our prevailing concern is that we continue to see children wrongly age assessed as over 18 and placed in unsafe and inappropriate accommodation with adults. The ref orms go no way in addressing this s ignificant safeguarding concern .  

6.8 NC 30 and 31 relate "to the establishment of a decision-making function in the Home Office, referred to as the national age assessment board (NAAB)." [32] They set out when local authorities are under a duty to refer an ‘age-disputed person’ to the NAAB in respect of exercising their functions under children’s legislation and when the Board can conduct assessments for immigration purposes. The establishment of such a central board raises immediate concerns as to its independence, legitimacy and the quality of its future decision-making. It also raises questions regarding its capacity or expertise to take on caseloads from local authorities and immigration officers, while ensuring best practice and best interests of children are upheld. An immediate concern is that a child will be deemed an adult by an immigration officer, placed in adult accommodation, and then remain there for a lengthy period before their age is assessed by the Board for immigration purposes.

6.9 NC 32 provides for the use of scientific methods, whether specified or not, in age assessments, including imaging technology and DNA samples. Medical age assessments are highly contested and not supported by use for the UNHCR in its own operations. The British Dental Association has been clear in its opposition to the use of dental X-rays, both as an inaccurate method of assessing age and as an unethical use of radiation when there is no health benefit to the child. [33] The clause sets out consent must be given for the use of scientific methods, either by the child, a parent or guardian or a person designated by the Secretary of State. No detail has been provided regarding who such designated persons might be. More alarming, the clause specifies that a decision-maker must deem a decision not to consent as damaging to the child or young person’s credibility. A young person or parent thereby has little option but to consent. We have grave concerns these provisions are not being driven by the best interests of the child.

6.10 NC 33 makes provision for the Secretary of State to make regulations about age assessments, including the information and evidence that is to be considered and the weight to be given to it. Age assessments are complex, and we have serious reservations regarding the proposals to codify this process. Codifying such a complex process will not equate to increased accuracy and clarity. Age assessments should entail a holistic assessment of capacity, vulnerability and needs that reflects the actual situation of a young person, rather than a reliance on set procedures aimed at estimating chronological age. Moreover, agreed guidance already exists. The clause further specifies the Secretary of State may delineate the qualifications and experience necessary for those conducting age assessments or using specified scientific methods, but there is no mention of safeguarding measures with respect to such persons. And once again, the clause underscores that Secretary of State may regulate the consequences of failing to co-operate with an assessment, which may include damage to a person’s credibility.

6.11 We welcome the provision of legal aid for age assessment appeals as set out in NC 37. We question whether this provision includes legal aid for further age assessments conducted upon new information becoming available pursuant to NC 36?

6.12 W hile the Gover nment raises the risks of adults claiming to be children, courts and ADCS Guidance note that "the dangers inherent in treating a child as an adult are in almost all cases far greater than the dangers of taking a young adult into your care." [34]  New Clauses 29 to 37 drastic ally increase this risk, posing grave consequences for children. 

6.13 The current system, while imperfect, already allows agencies to spot adults falsely claiming to be children. Intended reforms are far more likely to have a negative impact on teenage children than adults. 

7. Best interests of the Child

 

7.1 The above NABB clauses underscore our concerns of the lack of a comprehensive system for best interests determination, ensuring that decisions or policy which impinge upon children always expressly and fully consider children’s best interests first [35] . Such determination should take into account the child’s views, identity, their safety and protection, health and education and the preservation of their family environment, among other factors. [36]

7.2 In its latest observations on the UK in 2016, the UN Committee on the Rights of the Child expressed regret ‘that the rights of the child to have his or her best interests taken as a primary consideration is still not reflected in all legislative and policy matters’. It called on the government to ‘ensure that this right is appropriately integrated and…applied in all legislative, administrative and judicial proceedings and decisions as well as in all policies, programmes and projects that are relevant to and have an impact on children’. [37] In its current List of Issues Prior to Reporting, the UN Committee on the Rights of the Child has again asked the U.K. to set out the measures taken "to ensure that the principle of the best interests of the child is reflected in all legislative and policy matters" as well as the measures taken to "establish a child rights impact assessment procedure for all legislation and policies affecting children." [38]

7.3 We are not aware of any consultation with children and young victims of slavery or trafficking in the development of the current bill.

8. Guardianship

 

8.1 The asylum system is complex. We see the impacts on the asylum-seeking children and young people we support and give platform to the Youth-led Commission on Separated Children (YLCSC) – a youth-led campaign composed of young people previously supported by The Children’s Society – to allow others to learn from their lived experience of the system. They know how important it is that their best interests are considered and their rights defended, and for this reason, they are calling [39] on the Government to provide legal guardians to all unaccompanied and separated children arriving in England and Wales, in line with schemes already in existence in Scotland and Northern Ireland. 

8.2 Guardians help separated children and young people navigate the complex and lengthy asylum and immigration process, supporting them with understanding their rights and advocating for their best interests. Their role would complement the work carried out by social workers who do not have the capacity or specialist training to support children to understand the legal complexities of the asylum process and make informed decisions about the next steps in their asylum case. A scheme of independent guardians could help to safeguard and significantly improve the well-being of separated children, as well as helping to achieve better-coordinated, long-term cost savings for statutory services.

November 2021