Children's Rights - Human Rights Joint Committee Contents


Memorandum submitted by Dr Caroline Sawyer, Oxford Brookes University

  Issue 2: the practical impact of the withdrawal of the UK's reservations on immigration and children in custody with adults to the UN Convention on the Rights of the Child (UNCRC)

  It has been suggested that the withdrawal of the reservation will deal with the problem of the small number of children with British citizenship who are expelled with foreign parents. However this does not appear necessarily to be the case.

  Expulsions of any person may present difficulties of principle if the person is unwilling to go because of real fears. Expulsion into potential danger is still more difficult if the person being expelled is a child, because of their vulnerability. The expulsion of a British citizen child however presents additional problems, because of the abdication of obligations of protection to the child as citizen and the effective expulsion of that child citizen.

  Children may be expelled to dangerous countries or to countries where they have no citizenship rights (where as children they may be allowed to enter without papers). These expulsions are carried out informally as an adjunct to the normal formal removal process, and can include time in an immigration removal centre as part of the enforcement process, before being escorted out of the UK, all at government expense.

  These expulsions of British citizens occur when a UK-born child has one British (or settled) and one foreign parent. The child is therefore born British in accordance with s. 1 British Nationality Act 1981, but the right of the foreign national parent to remain in the UK may be dependent on the continuation of the relationship with the British parent. If the British parent dies or abandons the family, for reason of relationship breakdown or illness, the foreign parent may lose the right to remain in the UK as a consequence. Her (or occasionally his) departure may then be truly voluntary, or may be undertaken under the duress of a lack of status—no right to work or access to welfare benefits—or may be enforced physically. The child will be taken along too and treated as if he or she were a foreign national.

  It is not legally possible for a British citizen to be formally removed or deported. It is possible for removal or deportation orders to cover family members (NIAA 2002, s. 73; UKBA 2007, s.37), and it may well be that British citizen children have been included in error, because arrangements for the assessment and recording of citizenship are unclear and because assessment of citizenship is often difficult. Thus it is unlikely that a British child would be able to challenge even a formal removal even if the situation were understood; there would be unlikely to be any realistic access to the necessary legal support. Children in the expulsion process are not treated as separate individual citizens but, if they are not included in formal directions, are accommodated and sent out without formalities adjunct to the removal of their parents. No records are kept by the Home Office of the departure of these British children, nor by the Foreign and Commonwealth Office of their arrival in their host country.

  The practice of informal but enforced expulsions of British citizen children was confirmed in a Parliamentary Written Answer in July 2008.

    21 JULY 2008 : COLUMN 959W—CONTINUED

    Immigration: Children

    Mr. Andrew Smith: To ask the Secretary of State for the Home Department how many children who are British citizens are in immigration detention; and for how long they have been there. [207583]

    Mr. Byrne [holding answer 4 June 2008]: There were no children with British citizenship in any immigration removal centre as at Thursday, 22 May 2008. The UK

    21 July 2008 : Column 962W

    Border Agency does not detain children who are British citizens. However, where a foreign national subject to enforced removal is parent to a child with British citizenship, it is possible for that child to accompany the parent through the enforcement process on a voluntary basis. Such situations are not common and would only occur where deemed to be in the child's best interests with all parties in agreement and the parent providing consent. The child's status in the removal centre would effectively be that of a guest.

  However, the assertions in the Parliamentary Written Answer about the "child's best interests with all parties in agreement" appear to be untrue. Similar assertions have been made in identical terms in correspondence to Andrew Smith MP by Jacqui Smith, Home Secretary, and by Meg Hillier, Under-Secretary of State for Identity, the latter subsequently confirming that this had been in error. There is no welfare assessment.

  The comment about "the parent providing consent" is similarly disingenuous. The parent is given only the alternatives of taking the child with her or leaving the child behind in the care of the local authority. (If the British non-carer parent wishes to retain even contact with the child, in practice the carer parent is given leave to remain in order to facilitate that. If the British parent has care, the foreign parent may be removed and required to rely on contact only by international visits, for which the Immigration Rules provide.)

  The practice has also been described by Ministers as analogous to parents taking their children with them when they go to work abroad. Especially where there is a forced removal, this is again disingenuous. Parents going to work abroad are likely to be professionals who can offer their children even more than the basic social protections, and if the situation is uncomfortable they have the choice of returning to the UK. Removals however are effected even into dangerous conditions or extreme poverty and lack of health care, and are designed to be permanent.

  Only Ireland and the UK appear to pursue this practice. Countries on the continent are more wary of expelling their own citizens.

  Children over the age of seven used to be relatively safe from this practice, but the "Seven Year Child Concession" was withdrawn in December 2008 without any saving provision for British citizens.

    9 DEC 2008 : COLUMN 49WS

    Seven Year Child Concession

    The Minister for Borders and Immigration (Mr. Phil Woolas): The United Kingdom Border Agency is withdrawing DP5/96, a concession which has also been referred to as the seven year child concession, as of 9 December 2008. The concession set out the criteria to be applied when considering whether enforcement action should proceed or be initiated against parents of a child who was born here and has lived continuously to the age of seven or over, or where, having come to the UK at an early age, they have accumulated seven years or more continuous residence. The original purpose and need for the concession has been overtaken by the Human Rights Act and changes to immigration rules. The fact that a child has spent a significant period of their life in the United Kingdom will continue to be an important relevant factor to be taken into account by case workers when evaluating whether removal of their parents is appropriate. Any decision to remove a family from the UK will continue to be made in accordance with our obligations under the European Convention on Human Rights (ECHR) and the Immigration Rules.

  The problem is that Art 8 rarely works and there is no means within the Immigration Rules for the child to seek leave to remain for the foreign parent. The relevant Rule would be Rule 317, which provides for British people to sponsor certain relatives. There is no provision for minor children to sponsor their parents in order to look after them. The Home Secretary Jacqui Smith was invited to consider making an amendment to Rule 317 by adding a paragraph (g) to allow a minor child who is a British citizen to seek leave to enter or remain for a carer parent without immigration status, with guidance for leave to be allowed especially where the child would otherwise be obliged either to accompany the parent to a place where the living standards are not acceptable for a British child or else to remain alone in the UK in local authority care. She replied saying there was no need for such a provision because the child's interests were sufficiently safeguarded by welfare assessments. This assertion was made in a paragraph duplicating that of Meg Hillier who, however, subsequently confirmed that the information was incorrect. No such welfare assessments are made. In any case, even if they were, they would not of themselves acknowledge the child's citizenship rights. Thus even if the reservation to the UNCRC is withdrawn, the problem is unlikely to be solved.

  The UNCRC equates child welfare with family unity, and (as generally with international instruments) does not govern states' rights to exclude non-nationals. Without a change in the provisions for foreign parents to stay, a welfare assessment based on a UNCRC framework would therefore reach a conclusion based not on the child's best interests as one might expect but on whether it was better for the child to remain alone or to be expelled to somewhere potentially dangerous. Again, it would take no account of the child's citizenship rights. Even if it was concluded that the child's interests would be irrevocably damaged by either prospect, the alternative of the parent's remaining in the UK with the child would not be available save outside the Rules. If the parent were likely to be allowed to stay outside the Rules, that would probably already have happened. If the problem is to be solved by parents' being allowed to stay if the child's welfare assessment requires it, that should be acknowledged in a Rule.

  Potential political problems to making this change are:

    1. that it might be perceived as an invitation to foreign people to safeguard their immigration position by having British children.

    2. that such parents would have to be given a status on which, if they did not succeed in finding work, they would be able to have recourse to public funds.

  The answer to 1 is that most people currently think this is the position, and so the current very small numbers would be unlikely to rise. The answer to 2 as well as 1 is that, given the small number, the overall burden is very small, and that it is a small price to pay for respecting the citizenship rights of these children.

  For examples of courts' and tribunals' approach to the issue, see M v London Borough of Islington [2004] EWCA Civ 235 esp. paras 16 and 24; AO (unreported determinations are not precedents) Japan [2008] UKAIT 00056, and Baroness Hale of Richmond in Naidike and others v Attorney General for Trinidad and Tobago [2004] UKPC 49.

  The judgement of the House of Lords in Huang v SSHD [2007] UKHL 11 was considered likely to resolve the problem. However, because there is no provision for a child to sponsor a parent at all, there is nothing onto which to hang a court case on behalf of the child. Only the parent will be served with any order or directions that can be challenged, and the invocation of for example Article 8 ECHR will be focused on respect for the parent's rights rather than the child's. Even though Beoku Betts [2008] UKHL 39 requires the impact on other family members of any removal, the situation there did not envisagetheir accompanying him, thus preserving family life. Moreover one probably requires a court to enforce these ideals, and the parent's application would require a recognition of citizenship rights as private life under Article 8 which the Strasbourg jurisprudence does not find (Sorabjee and Jaramillo v UK Apps. nos. 23938/94 and 24865/94). Moreover the UK has not ratified Optional Protocol No. 4 to the ECHR, which prohibits the expulsion of a country's own citizens. Accordingly even if the reservation to the UNCRC is withdrawn, these informal expulsions may continue as before, without potential redress.

  It seems probable that these British children will almost invariably be from the black or Asian communities. A Parliamentary Written Question as to whether a race impact study has been made of this practice has not yet been answered (and was unfortunately spontaneously rephrased by the Table Office without reference back so that it may have to be asked again) but as no records are kept of the practice it is a Question expecting the answer No. As with the civilian internees in Japanese war camps, it appears that they are treated as not British, notwithstanding that here they have British citizenship as of right through birth in the UK. The implications of continuing to make no provision for the child to apply for the parent to remain in even the hardest of cases is that, although in practice it will rarely come to pass, all British citizen children with a foreign parent are at risk of expulsion from their own country.

  Caroline Sawyer, Oxford Brookes University (csawyer@brookes.ac.uk)

February 2009






 
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