Joint Committee On Human Rights Seventeenth Report

9. Opinion of Nicholas Blake QC, Matrix Chambers, and Sandhya Drew,

Tooks Court Chambers



1.  We are asked to advise Save the Children UK (SC UK) on the compatibility with international norms of the United Kingdom Government's Reservation to the 1989 Convention on the Rights of the Child, which was adopted by the General Assembly on November 20th 1989 and ratified by the United Kingdom on December 16th 1991 ("the CRC").

2.   It is trite that under the Vienna Convention on the Law of Treaties (itself representing the distillation of customary international law) a Reservation may only be made to the Treaty insofar as it is not incompatible with the Treaty's objects and purposes. Article 51(2) of the CRC reflects this. It is equally clear that one of the principal objects and purposes of the CRC is to establish the principle whereby the best interests of the child shall be a primary consideration in any decision of a public body touching on the welfare of a child (Article 3). This Opinion will therefore examine the meaning of the CRC in the field of immigration and asylum and the extent to which the reservation improperly restricts its application.

3.  We seek to address the paradox at the heart of the UK Government's position, which is to maintain the Reservation whilst at the same time submitting that immigration laws are fully compatible with the CRC. If the latter were true then there would be no need for the former.

4.  It is our conclusion that—

i.    The continuation of the Reservation is not necessary in order for the government to maintain a system of firm immigration control and should now be withdrawn.

ii.  To avoid incompatibility between the Reservation and the objects and purposes of the CRC a narrow meaning would need to be given to the Reservation, essentially to make it declaratory of the permissible measures that a state can take with respect to children in matters of immigration control. A broad meaning, namely that any measure of immigration control is outside the purview of the CRC, would conflict with the objects and purposes of the CRC. In its present form the Reservation lends itself to a broad meaning and has been so applied by domestic courts.

iii.  The best interests principle is already part of domestic law through the Children Act 1989 ("the 1989 Act"), the European Convention on Human Rights (ECHR) and the express recognition of the principle in the European Charter of Fundamental Rights. The application of the best interests principle under these instruments does not conflict with the operation of a firm immigration law and should not do so under the CRC but the maintenance of the Reservation to the CRC gives rise to the wrong implication that the best interests principle may be excluded wholesale from areas of executive discretion concerned with immigration, asylum and nationality.

iv.  Certain practices of public authorities relating to the treatment of children who are physically present in the country whether as asylum seekers or other unaccompanied minors in need of protection, do not apply the paramountcy principle, and should be amended.

v.  Some of the laws promoted in the UK to deter asylum seekers and their families from becoming a burden on public funds, or attracting migrants unconnected with protection needs, may violate the best interests principle and the duty of non-discrimination provided for in the CRC.

vi.  Accession to the CRC without the Reservation would thus benefit law makers and executive agencies in the promotion of laws and practices compatible with the CRC.

The Reservation

5.  The Reservation states—

The United Kingdom reserves the right to apply such legislation, in so far as it relates to the entry into, stay in and departure from the United Kingdom of those who do not have the right under the law of the United Kingdom to enter and remain in the United Kingdom, and to the acquisition and possession of citizenship, as it may deem necessary from time to time.

6.  This has the apparent effect of excluding the best interests principle and asserting the primacy of executive discretion in the implementation of a system of immigration control under the Immigration Acts 1971 to 1999 and the British Nationality Act 1981. The Reservation has twice been alluded to by the Court of Appeal in concluding that the CRC had no relevance in determining common law standards of rationality or giving rise to a legitimate expectation that executive decisions would conform with the CRC. These decisions contrast with that of Baker v. Canada (Minister of Citizenship and Immigration) where the Canadian courts quashed an immigration decision as unreasonable in administrative law for failure to give sufficient weight to the best interests of the child as required the CRC.

The Government's Position So Far

7.  In 1999 the Committee on the Rights of the Child, concluded, having considered the Government's Report and representations from non-governmental organisations, that the Reservation is incompatible with the object and purposes of the CRC. The question of the competence of international bodies to adjudicate on the validity of reservations has itself been the subject of controversy, but it is now plain beyond argument that international courts such as the World Court (formerly the ICJ), the European Court on Human Rights and the Inter American Court of Human Rights have such competence in order to make the exercise of their jurisdiction effective. Equally, the Human Rights Committee has given decisions of the compatibility of reservations when considering its capacity to receive communications under the Optional Protocol of the ICCPR. Whilst the Committee does not have the function and the status of a Court empowered to give a binding authoritative interpretation of the CRC, it is, however, the body to which Contracting States report and is the international custodian of the CRC and its implementation and there is a duty of states to cooperate with it under Articles 43 and 44.

8.  The duty of good faith and cooperation with the Committee thus required the United Kingdom to respond to the Committee's decision and either justify or abrogate the Reservation in question. The present Government undertook to carry out a review, which has resulted in the maintenance, rather than the withdrawal, of the Reservation.

State Control of Borders

9.  International law recognises the prerogative of a State to control the entry and to enforce the departure of children who are subject to immigration control or whose parents are so subject, even where this affects the principle of family unity. The European Court on Human Rights has concluded that the right to respect for family life under Article 8 gives no right for a family to choose its place of residence and accordingly does not grant rights of entry into or freedom from expulsion from the territory of a state: see Abdulaziz, Cabales and Balkandali v UK (1985) 7 EHRR 471. At the same time the national law powers must be exercised with due regard for the international obligation, and there may be cases where implementation of decisions lawful under domestic law represent unjustified interferences with the right to respect for family life under international law. Given that the principles of the CRC are applied in decisions of the Strasbourg Court that concern the right to private and family life and the welfare of children, incorporation of the ECHR into domestic law would require a more intensive scrutiny of the rights of the child and the weight to be afforded them than under the common law before the Human Rights Act (HRA). It is likely that a similar approach in terms of its relationship to national immigration law would be adopted by the CRC: see the Canadian decision of Baker.

10.  Nothing in the CRC grants immigration rights for the purposes of family reunification: this is plain from the wording of Articles 9 and 10, which we have set out in full in an appendix to this Opinion. The Government's concern that withdrawal of the Reservation would lead to a right of entry to exercise rights under the CRC seems misplaced therefore.

11.  Further, during the drafting of the CRC, the Chairman of the Working Group made the following declaration:

"It is the understanding of the Working Group that article 6 [now 9] of this Convention is intended to apply to separations that arise in domestic situations, whereas article 6 bis [now 10] is intended to apply to separations involving different countries and relating to cases of family reunification."

Such a declaration as part of the travaux preparatoires of the Convention is of course extremely influential in any reading of it. It reinforces the view that the rights conferred by Article 9 do not preclude the substantive right of a State to control immigration.

12.  Article 10 addresses the issue of applications to enter a State for the purposes of family reunification. However, it goes no further than to require that such applications be dealt with in a positive, humane and expeditious manner. It confers rights to leave any country for the purposes of family reunification, but quite clearly does not confer the right to enter any country other than one's own. In our view, therefore, neither Article 9 or 10 impede a State's right to control its borders and do not therefore require the entering of a reservation, in order to retain the power to refuse admission and to remove family members of children. Despite this, some States have, for the avoidance of doubt, entered declarations, thereby clarifying their understanding of the extent of their obligations. Japan is an example of this.

13.  This declaration differs from the United Kingdom Reservation in the following ways. First, it is clearly a declaration—a statement of understanding—rather than a reservation properly so called. A reservation such as that entered by the United Kingdom seeks to remove certain areas from the scope of the obligations under the CRC. Secondly, the Japanese declaration is limited in scope and refers specifically to certain provisions of the CRC. The United Kingdom Reservation, on the other hand, is a blanket reservation applicable to entry, stay, departure and the grant of citizenship. This could lend itself to the broad interpretation applied by the UK courts that the CRC is simply inadmissible as a relevant consideration where any immigration decision touching children is concerned. It is an examination of this broader reading that is the focus of the present opinion.

Legislative Framework

14.   It is clear from the work of many organisations concerned with the interests of children, that there are a variety of circumstances where children are within the jurisdiction of the United Kingdom and without a settled immigration status but are in need of protection. The question that then arises is whether their status as immigrants or children dominates the legal regime and the duties owed by the executive to them. We have no doubt that it is the latter.

15.   The present opinion particularly concerns children who are here as asylum-seekers and have not yet been given leave to enter the United Kingdom. Such children fall under two separate legislative regimes:

    (i)  Children within families are covered by the provisions of the Immigration and Asylum Act 1999 ("the 1999 Act"). The 1999 Act draws a distinction between children whose parents are seeking asylum and other children. The assistance of children contemplated by social welfare legislation is ousted by the 1999 Act, since section 122 of the 1999 Act prohibits local authorities from providing such assistance where assistance is being provided by the National Asylum Support Service ("NASS") under section 95 of the 1999 Act. These children thus share the fate of their parents in terms of housing allocation, social support and provision of health services.

    (ii)  By contrast, children who are unaccompanied fall within the provisions of the 1989 Act. So far as support is concerned, the legislative framework does not distinguish between them and children who are not subject to immigration control. The local authority is responsible for the support of these children. Part III of the 1989 Act is headed 'Local Authority Support for Children and Families'. Sections 17 and 20 of that Part impose duties on local authorities in respect of the care of children who are in need. Section 17 imposes a duty to safeguard and promote the welfare of children regardless of whether or not those children are being brought up in their family. The duty under section 20 arises when a child requires accommodation as a result of either there being no person with parental responsibility for them; their being lost or abandoned or the person who has been caring for them being prevented from providing them with suitable accommodation or care: s20(1). The State's duty under section 20 then gives rise to a number of consequent duties to safeguard and promote the welfare of the child (s22(3)) and to advise, assist and befriend the child with a view to promoting the child's welfare when s/he ceases to be looked after by the authority (s24(1) and the Children (Leaving Care) Act 2001). It can thus be seen that the duty under section 20 is more detailed and extensive than the duty under section 17.

16.  In this opinion, we focus on the question of unaccompanied children, since much of the work of Save the Children concerns them, for example the Separated Children in Europe Programme, which is a joint UNHCR/ International Save the Children Alliance project. However, as regards accompanied children it is to be noted that if the two regimes vary intensely in the quality of their provision, there may be an issue as to whether they are being discriminated against on the basis of the status of their parents as asylum seekers: a result specifically precluded by Art 2.1 of the CRC.

17.  We now turn to the present situation of many unaccompanied children. The UNHCR/ SC UK statement of good practice defines unaccompanied or separated children as those who are: "outside their country of origin and separated from both parents or their legal/ customary primary care giver." They may be either accompanied by an adult who is not their parent or legal customary care giver, or not so accompanied. It is plain from this that unaccompanied asylum-seeking children are by definition children who have been deprived of their family environment.

18.  Since these children are unaccompanied, the State is under a particular responsibility for them, as children who have been deprived of their family environment. This follows from Article 20 of the CRC (see below). This principle has recently been applied in different circumstances by the Court of Appeal, which held that, where a child has been removed from their family environment by the State, the State falls under a positive obligation to replicate, so far as possible, the missing family environment.

19.  We note in this context the developing jurisprudence of the Family Division applying Article 8 of the European Convention on Human Rights, and the observation of Sedley LJ in Re F (Adult: Court's Jurisdiction) [2000] 1 Fam 38, affirmed in Re W and B [2001] EWCA Civ 757 para 58 :

    "The family life for which article 8 requires respect is not a proprietary right vested in either parent or child: it is as much an interest of society as of individual family members, and its principal purpose, at least where there are children, must be the safety and welfare of the child. It needs to be remembered that the tabulated right is not to family life as such but to respect for it. It needs to be remembered that the tabulated right is not to family life as such but to respect for it. The purpose in my view, is to assure within proper limits the entitlement of individuals to the benefit of what is benign and positive in family life. It is not to allow other individuals however closely related or well intentioned to create or perpetuate situations which jeopardise their welfare."

20.  Since the relevant provisions of the 1989 Act are fully applicable to unaccompanied asylum-seeking children, it follows that within the ambit of services which are needed and which are lawful to provide, such children should not be treated differently from similarly placed children, simply because they are asylum seekers. This follows from Article 2 of the Convention (which the Government claims is fully honoured) which prohibits discrimination on the grounds of status, including the status of being a non-national, refugee or asylum seeker (we address this more fully below).

21.  It also follows from Article 22, which requires the Government to take appropriate measures to ensure that children, whether refugee or asylum-seeking, accompanied or unaccompanied, enjoy the applicable rights in the Convention (also addressed below).

22.  The true position, in fact, is that there exist significant instances of differential treatment, as we have seen from a substantial body of documentation, researched by a number of children's charities and by the Audit Commission, and annexed to this Opinion. The evidence we have seen on the treatment of children during their stay, in particular, the arrangements for the support and care of children and the detention of children points ineluctably to the conclusion that the alternative family environment which the State has a duty to provide for those children who are permanently or temporarily deprived of their family environment is not being provided for unaccompanied children who are refugees or seeking refugee status. We note that many asylum-seeking children, in particular those over 16, are routinely supported by local authorities under s17 rather than s20.

23.  In its Second Report to the Committee on the Rights of the Child, the UK Government has asserted that it acts compatibly with the Convention. We, therefore, look below at some of the relevant provisions.

Relevant Articles of the CRC

24.  A number of principles fundamental to the Convention are engaged in respect of children who are within the jurisdiction. The most relevant Articles are set out below. In reading those Articles, reference should be made to the General Guidelines Regarding the Form and Contents of Periodic Reports to be submitted by States Parties under Article 44 Paragraph 1(B) of the Convention, adopted by the Committee on the Rights of the Child at its 343rd meeting (thirteenth session) on 11 October 1996.

25.  Article 2 (non-discrimination) provides:

1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians or family members.

26.  Article 22 provides:

1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.

2. For this purpose, States Parties shall provide, as they consider appropriate, cooperation in any efforts by the United Nations and other competent intergovernmental organizations or non-governmental organizations cooperating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.

27.  In our opinion, an issue arises under Articles 2 and 22 as regards the treatment of asylum-seeking children:

    (i)    The guarantee of non-discrimination applies to all children within the jurisdiction, regardless of citizenship or immigration status. This is clear from the two provisions guaranteeing equality: Article 2, which applies to "each child within the jurisdiction" and Article 22, which requires States to assist "a child who is seeking refugee status" to enjoy the rights in the Convention. The Guidelines for Reporting make it clear that the non-discrimination guarantee extends to children who are seeking asylum. This interpretation of Article 2(1) is confirmed by a reading of the travaux preparatoires: a proposed Article 5, which referred to the enjoyment of rights of alien children was agreed by all but one delegate to be "no longer¼ necessary if paragraph 1 of article 4 [as Article 2 then was] were adopted" and, indeed, it was suggested that inclusion of the proposed Article 5 might undermine the universality of Article 4(1).

    (ii)    Even before the Convention was adopted, the organs of the United Nations made it clear that discrimination against children who are aliens is prohibited. In its General Comment 17 Rights of the Child, on the International Covenant on Civil and Political Rights, the Human Rights Committee stated at #5:

    "Reports by States Parties should indicate how legislation and practice ensure that measures of protection are aimed at removing all discrimination in every field, including inheritance, particularly as between children who are nationals and children who are aliens¼".

    (iii)  International law permits distinctions to be drawn between national and aliens in a number of contexts. In our view, however, the General Assembly when it adopted the CRC, quite clearly intended different principles to apply in the case of children.

    (iv)    Article 22 specifically provides for appropriate treatment as an asylum seeker. This suggests that the child in question may not yet have been legally admitted to the UK, but is pending a decision on status. Apart from providing a substantive right to appropriate treatment, in the field of social support, this right engages Article 2 as do the other provisions of the Convention, because it recognises that children seeking asylum, like disabled children, have special needs—for example in their mental health—which must be provided for in order to enable them to enjoy the basic rights set out in the CRC. In these circumstances, like for like treatment is not necessarily sufficient.

    (v)    That this is the case in no way represents a startling inroad into the right of States to control immigration. The children are not seeking equality in the field of immigration control itself but in the application of the rights set out in the CRC that represent only those rights which are essential to the development of the child.

    (vi)    It is clear that the principle that alien children should enjoy CRC rights equally with children who are citizens, follows from the established principle that once non-nationals are lawfully admitted to a territory, they are entitled to certain minimum rights necessary to the enjoyment of ordinary private life. No different conclusion should be reached in respect of these social rights by aliens who are physically present in the UK with the consent of the competent authorities, but who have not yet been given an immigration status and therefore under the fiction of national law are deemed not to have entered the UK.

    (vii)  The CRC recognises, by Article 5, the responsibility of the family of the child to provide direction and guidance in the exercise of Convention rights. In many cases, therefore, the family will be the primary provider for the child and the regime will be determined by the immigration status of the family. However, where a child is deprived of their family environment, they become directly reliant on the State, as a substitute parent, for fulfilment of their needs for care and support, shelter, health and education.

    (viii)  We have seen the assertion made in Jeff Rooker's letter dated 8th August 2001 to Mike Aaronson (Director General of Save the Children) that: "The reservation means that it is not possible for a child to seek entry to the UK or to seek to remain solely in order to exercise his/her rights under the UN Convention on the Rights of the Child." We would comment that insofar as this statement implies that the Convention grants rights to all children seeking to enter the jurisdiction in order to exercise Convention rights, such a reading of the Convention is plainly incorrect: we have noted that Article 2 is limited to children within the jurisdiction and Article 22 to children seeking asylum. On the other hand, once a child is firmly within the jurisdiction, there is nothing to suggest that the principle of equal treatment depends on the motives of the child concerned. The question is an objective one: is the child in need of protection afforded by the Convention?

    (ix)  It would appear from this statement that the government reserves the right to disapply the Convention in cases where they complain of the circumstances of the child's arrival. In our view, such a reservation is incompatible with the objects and purposes of the Convention which is the practical and effective means of securing increased protection for children quae children. Any fear that compliance with the CRC offers an incentive to child smugglers to produce more arrivals, can in our opinion be accommodated within the terms of the CRC itself. Separation from parents and family, vulnerability to exploitation is not in a child's best interests, and action can be taken to break up such rings and return children in safety and dignity whence they came. If such a return is not possible then the child should not be subjected to double punishment of loss of one caring regime and discriminatory denial of access to another.

28.  Article 3 (Best interests of the child) provides:

1. 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.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

29.  This Article is one of the core Articles of the CRC and its scope is as follows:

    (i)    The Article only requires that the best interests of the child be 'a', not 'the', primary consideration. It does, however, require the child's interests to be considered in all actions taken by the State. This principle is of broad application and authoritative commentators regard it as applying even where children's interests are only indirectly in play, such as in the formulation of government policies.

    (ii)    It is even more the case, therefore, that where a decision concerns the child's interests, the assessment of the best interests of that child are a necessary part of the decision-making process. Further, the best interests principle is more than simply one factor to be taken into account of equal weight to others. This follows from the use, in Article 3, of the word 'primary'. Thus, although the best interests of a child or children are to be assessed as part of a balancing exercise, a burden of proof is imposed to show that there is no practical alternative to a non child-centred decision, and that the intrusion on the best interests principle is the most minimal available in all the circumstances.

    (iii)  The European Court of Human Rights has also confirmed that the best interests of the child are included in the notion of family and private life protected by Article 8 of the ECHR, and will accordingly receive a primary consideration in the consideration of any permissible competing consideration under Article 8(2). Since this is already a binding obligation in national law, and is applicable to persons subject to immigration control, including those who are deemed not to have entered the UK, it is inappropriate to make a reservation to the CRC in immigration cases whilst being unconditionally bound by the ECHR.

    (iv)    The Court of Appeal has recently considered the CRC, in a case concerning a blanket policy of separation of prisoners' children from their mothers. The Court identified interests to be weighed in the balance: "those of the state in the proper management of prisons, of the mothers in their family life, and of the children in the protection, not only of their family life but also of their best interest.". The Court expressly referred to Article 3 of the CRC. The best interests principle is thus closely considered and its application monitored by the Courts in cases other than in the field of immigration. The contrast with the decision in Gangadeen and Khan is marked.

    (v)    The best interests principle is equally clearly stated as a principle recognised in the law of each member state by the European Charter of Fundamental Rights. Although this is expressed not to be a legally binding document, a political recognition that precisely defined rights are already enjoyed in the Union, is clear evidence of regional customary norms, untrammelled by reservations in the field of immigration, and we have no doubt that decision makers, advocates and courts will make increasing reference to these principles in the future. It makes no sense for there to be a reservation to the CRC but none to the Charter.

    (vi)    The best interests of the child take on an even greater importance in the case of unaccompanied children, who are by definition unable to look to their family for support and are directly reliant on the State.

    (vii)  We note that the Government's Second Report to the Committee on the Rights of the Child contains no reference at all to the best interests principle. The documentation we have seen shows little evidence that the best interests of asylum-seeking children, as children, are properly considered. The principle applies to every decision of a public authority affecting children, without restriction or reservation. It is very difficult to see how a purported disallowance of this fundamental principle of the CRC in the field of certain decisions of the Home Office is compatible with the objects and purposes of the CRC.

30.  Article 20 provides, where relevant:

1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance by the State.

2. States Parties shall in accordance with their national laws ensure alternative care for such a child.

We have set out above how this obligation does not appear to be given effect to in the practice of local authorities.

31.  Article 37 of the CRC provides where relevant:

"No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of the child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time."

This Article has relevance to the specific issue of detention of children who are asylum seekers.

32.  The 1995 UNHCR guidelines on detention state that as a general rule, asylum seekers should not be detained.

"1. The use of detention against asylum seekers is, in the view of UNHCR, inherently undesirable. This is even more so in the case of vulnerable groups such as single women, children, unaccompanied minors and those with special medical or psychological needs."

33.  As with systems for support, different regimes operate in the United Kingdom for children who are within families and those who are unaccompanied:

    (i)  Government policy is presently that unaccompanied asylum seeking children should not be detained. There is debate as to which children obtain the benefit of this policy.

    (ii)  There is no comparable prohibition against detention of children within families. The detention centre at Yarlswood near Bedford, shortly to open, has facilities for the detention of families. In our view, the detention of children in families, without proper consideration given to their best interests, may give rise to significant issues under Articles 2, 3 and 22 as well as Article 37. We deal primarily, however, with unaccompanied children.

34.  We have seen documentation relating to the detention of children and a number of documents on the treatment of unaccompanied asylum-seeking children. Overall, these suggest that the immigration status of these children is becoming the primary consideration in the treatment of them. Not least, we note that the budget for unaccompanied asylum-seeking children is now under the control of the Home Office rather than of the Department of Health.

35.  The documentation we have seen suggests that in practice, many children are detained. Where this occurs this is often because the immigration service has disputed their age. The Guidelines from Paediatricians—the Health of Refugee Children state:

"The determination of age is a complex and often inexact set of skills, where various types of physical, social and cultural factors all play their part, although none provide a wholly exact or reliable indication of age, especially for older children."

36.  The Government's position on detention is set out in its Second Report to the Committee on the Rights of the Child. The position, on the crucial issue of benefit of the doubt as to whether a someone is within the CRC, is not at all clear: At 10.15.1 of its Report, the Government states:

In the majority of borderline cases where the applicant claims to be under 18, and the documentary or other evidence is not conclusive, he or she is usually given the benefit of the doubt.

37.  However, at 10.15.4, it seems that conclusive evidence is sought before the benefit of the doubt is given:

In the majority of cases where an applicant claims to be under 18, he or she is usually given the benefit of the doubt. However, there are circumstances where there is no conclusive evidence to show that a particular applicant is a minor. Whilst medical reports provided by the individual or his representatives can be a helpful indicator, they are not necessarily conclusive.

If evidence was conclusive as to age, then there would be no doubt in the first place.

38.  We also note that it is proposed to leave the complex issue of age assessment to immigration officers. In our view, such an arrangement does not contain sufficient safeguards to ensure respect for Convention rights, including the principle of the benefit of the doubt.

39.  In our opinion, therefore, there is a significant risk that there is an incompatibility with the Convention, where the detention of children who are seeking asylum is concerned. We note in this regard that the Terms of Reference of the Unaccompanied Asylum Seeking Children Group are as follows:

The Working Group will ensure that activities and outcomes are consistent with the UK's obligations under the 1951 Convention relating to the Status of Refugees and the Children Act 1989; and are compatible with Home Office policy on the Convention on the Rights of the Child

We understand that the reference to the Convention was included at the prompting of participating groups. Even so this falls far short of an assurance, such as those made by the Government in public and to the UN Committee, of full compatibility with the Convention.

40.  In the context of detention, we are aware of the judgment of the Court of Appeal in Saadi and ors ® on the application of) v The Secretary of State for the Home Department the Oakington judgment) [2001] EWCA Civ 1512 delivered on October 19th 2001. We note that the Court of Appeal has taken a narrow view of the concept of arbitrariness and the requirements of proportionality in the filed of the detention of asylum seekers. The case is proceeding to the House of Lords. If the Court of Appeal decision remains, it is apparent that the rights of child asylum seekers under the CRC will not be sufficiently protected by a general reference to Article 5 of the ECHR. It is inconceivable that the best interests principle could contemplate even the short term detention of child asylum seekers for administrative convenience whilst their protection claims are processed. This applies irrespective of whether there are grounds to detain adult members of their families. Children are a vulnerable category and detention has a harsher impact on them than on adults.


41.  Our conclusions are as follows:

    (i)    The UK's Reservation is in extremely broad terms and insofar as it is seeking to exclude children who are not given leave to enter from the substantive scope of the CRC, it is incompatible with that convention's object and purpose which is to protect all children. Further, in the light of the Reservation, even children who have been given leave to enter, might still be treated differently on the grounds of their immigration or nationality status.

    (ii)    We have already noted that, insofar as the Reservation is seeking to mainatainmmainmmaintain the state's right to operate a system of immigration control in the form of the granting of leave to enter, decisions to deport or remove, it is not necessary, since the CRC does not purport to limit such rights: see the analysis of Articles 9 and 10, above. In so far as the Reservation seeks to go further than this and give primacy to the interests of immigration control in any decision of the Home Office touching a child or his or her carers, then this is again contrary to core objectives of the CRC.

    (iii)  We would recommend that the Reservation be withdrawn and questions of compatibility of immigration law and policy with the CRC be decided on a case by case basis in the light of the discussion above.

    (iv)    At the very least if government felt that some statement were needed of the UK's right to maintain immigration control where children were concerned, then in lieu of the present general Reservation, it might be more appropriate for a restricted interpretative declaration to be made at the time of withdrawing the Reservation, although for reasons already given such a course is unnecessary and therefore not desirable.

    (v)    In the case of children who are physically present on the territory and where their treatment as children for the purposes of care and support is under consideration, the Reservation is in our view either an unacceptable denial of the substantive rights given to children under the CRC, or it is unnecessary. In either case, it should be withdrawn.

    (vi)    The Government's assertion that de jure and de facto, in theory and in practice, its treatment of asylum-seeking children is compatible with the CRC:

      (a)    evinces an intention to be bound by the CRC;

      (b)    is consistent with its solemn declaration in adhering to Article 24 of the EU Charter;

      (c)    is consistent with the common standards under the CRC to which the European Court of Human Rights has had regard;

      (d)  is consistent with the fact that its legislative scheme of assistance to unaccompanied children does not purport to exclude them from social welfare support by local authorities simply because they are seeking refugee status.

    (vii)  In sum, de jure compliance is to be preferred to partial de facto compliance. In our opinion, the Government will be able to withdraw the Reservation without detriment to existing policy choices in respect of the care and support of unaccompanied asylum-seeking children. Withdrawal of the Reservation will entrench such existing policy, and place clear limits on the treatment of children who are accompanied by family members.

42.  By contrast the ongoing decision to maintain the Reservation has the following consequences:

    (i)    It removes a stimulus to promote the Art 4 duty to take active measures to implement the rights;

    (ii)    It deters investigation by and accountability to the judicial branch of government, of CRC principles including the principle of primacy of best interests in respect of the treatment of children and the principle of non discrimination who are seeking asylum or other forms of protection;

    (iii)  Maintenance of the Reservation therefore prevents the CRC from playing a full and appropriate role in the national development of ECHR caselaw and in social and legal policy in the United Kingdom towards children seeking asylum in this country.

30th November 2001

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