Borders, Citizenship and Immigration Bill [HL]

As some of the noble Lords who tabled these amendments are not present, it is important that I go into some detail so that it can be recorded in Hansard and they are able to read it. Therefore, I make no apology for being slightly overlong in my response. These two amendments draw attention to the very difficult issue of the detention of children. I fully recognise the concern that many—indeed, all—of your Lordships feel about this. None of us wants to see children detained, and my noble friend Lord Judd spoke about that very eloquently. Each case is a personal tragedy, as we all know. The Government would much prefer families to leave this country voluntarily when they no longer have a right to remain here. Unfortunately, they do not always choose to do so. Often, they try to disappear within the country to get away from the fact that they might have to leave, and that often puts their children at risk. When they try to disappear and are not willing to return voluntarily, detention becomes a necessity in order to ensure compliance with the immigration laws. However, we fully recognise the sensitivities of detaining children and, where it does happen, we want to ensure that it happens as a last resort and for as short a period as possible. That is our aim. We understand the need to have proper systems in place for monitoring and authorising its use, and that is why these amendments are so important. As an aside, the noble Lord, Lord Henley, made a sideswipe at immigration laws. Over the many years before I was involved in politics, I watched with amazement the total lack of any immigration policy from the party opposite. At least there is now an indication of trying to get some sort of policy. However, that is a side issue. I shall deal with each of the amendments in turn, beginning with Amendment 117, which concerns statistics. Statistics are a crucial tool in enabling us to monitor and understand the number of occasions on which detention takes place. We already publish statistics on children in detention as part of the quarterly statistical summary of the control of immigration. In that respect, a statutory duty is not necessary and would add nothing to what already happens every three months. The most recent figures, covering October to December 2008, were published last month. They show the number of those detained at the end of December 2008 as a snapshot. The noble Lord, Lord Avebury, asked why they are rounded and why it is a snapshot. All migration statistics published are currently rounded to ensure that individuals cannot be identified within those statistics and snapshots show the situation at any specific point in time. The details of those removed from the UK are also published. As I say, the statistics show the number of those detained as a snapshot at the end of 2008 and details of those being removed on leaving detention. They also give details of those removed from the UK on leaving detention by age and place of last detention, and show snapshot statistics by place of detention, gender and length of detention. Finally, all tables separately identify children—those under 18 years. Nevertheless, I recognise the concern which underpins the amendment about the adequacy of the existing statistics. I would argue that placing on the face of the statute the precise areas to be covered by statistics is not the way to address this concern. It is too restrictive an approach and a statutory requirement may, at a future date, be a hindrance to our ability to adapt and to improve data that we already collect so as to address a new issue. A process of improvement is going on. I admit we have a way to go. For example, we produce statistics on the length of detention of adults. They were published this quarter for the first time since 2006 and that was after developing new methods because of the data quality issues. That is a problem concerned with continuing the series as it was. Removal centres like Oakington and Harwich were added to the statistics for the first time. One was added in 2007 and one in 2008. In the future, we will seek to develop statistics on the number of persons entering the entire border force detention estate and publish that series for the first time. We intend to expand the statistics on the number leaving detention. Currently, only the figures of those who leave detention for the purpose of removal are published. We intend to compare data held on the border force and Prison Service databases to assess whether the quality is sufficient to publish figures on those detained in the prison estate under immigration powers. I believe that this shows our commitment to trying to develop published detention statistics, but it also shows some of the difficulties in ensuring that those data are collected. I shall deal with the areas highlighted in the amendment in turn. Statistics on age, nationality, place of detention and length of detention are currently included in the quarterly publication to which I have already referred. However, they are published as a snapshot of those in detention at the end of the relevant quarter. Further statistics are published on those leaving detention, but only for the purpose of removal. We recognise that it would be helpful to have fuller information of this kind. We accept that this is an area where we must achieve more to develop confidence in how children are being treated. We are already assessing what can be done in the future. I know some of that is jam tomorrow, but we understand the difficulties. We are trying hard and it is not always straightforward. The noble Lord, Lord Avebury, and the noble Baroness, Lady Howe, raised the issue of statistics for those who have absconded from local authority care. No doubt my officials’ hair will stand on end, but I agree that we should record that. I will undertake to see how that can be done. I think it should be done and I am surprised it is not done already. The areas covered by proposed subsection (2)(b), as mentioned by the noble Baroness, Lady Miller, and proposed subsection (2)(c) are a little more difficult. They are not based on the same hard evidence as proposed subsection (2)(a) and cannot be produced from the same databases, using the same processes as that hard evidence. I have already said how important I believe statistics are, but the noble Lord, Lord Henley, raised the importance of statistics being firmly based and being absolutely right. They are important in enabling you to do things and to make decisions, but there is an element of lies, damn lies and statistics. We do not want to get too carried away with them, but that is probably me speaking as a sailor rather than as a Minister. On proposed subsection (2)(b), how many dependent children a detained person has will totally depend on the individual case files and information that has been supplied by the detainee and would not include information which has been withheld. For example, detainees will sometimes, for understandable reasons, deliberately withhold information about children they have. As the information is not centrally available, the results would not be sufficiently robust for publication as national statistics. That is the problem we have, but we continue to look at this. As I have already said, we need to do better. Workshops and consultations take place at regular intervals to obtain the views and priorities of internal and external users of published immigration statistics. We have a detention user group that is currently looking at data on age-disputed cases and detention. In particular, Home Office statisticians specifically discuss with NGOs their views on requirements for published statistics. The statistician responsible for detention statistics regularly attends the detention user group meetings with NGOs, and a separate meeting is planned very shortly to discuss issues around detention statistics. As I said, we have to do better and keep on adjusting and moving forward on this. I turn now to the second amendment, Amendment 117A, which requires the continued detention of children to be subject to ministerial authorisation. In fact, we have a system for ministerial authorisation already, and I do not think that seeking to place that on a statutory footing is either necessary or helpful. Perhaps it will assist your Lordships if I set out how the current system works. Let me begin with our approach to the decision to detain. It is our policy that unaccompanied children must be detained overnight only in the most exceptional circumstances and with appropriate care while alternative arrangements for their care and safety are made. In the case of foreign national prisoners aged under 18, detention may be authorised in exceptional circumstances where it can be shown that they pose a serious risk to the public and a decision to deport or remove has been taken. For children who are in the care of adult family members, the position is as follows. If the adults are refusing to depart voluntarily and a decision to detain them is made, the children will normally be taken into detention with the adults in order to avoid separating them from their parents. This decision will be taken with due regard to Article 8 of the ECHR on the right to respect for private and family life. Once in detention, such children are subject to enhanced detention reviews. The family detention unit in the border force reviews the detention of children at days seven, 10 and 14 and every seven days thereafter. The family detention unit also seeks, from the Minister with responsibility for immigration, weekly authorisation to continue detention of those families with children who remain in detention beyond 28 days. In practice, the Minister receives a weekly submission detailing all cases with the potential to reach 28 days’ detention and all cases where continued detention has been authorised previously. This submission is informed by a conference call that takes place each Monday morning. The call is chaired by the family detention unit and brings together officials from the relevant border force enforcement team, social workers from Bedfordshire social services who are based at Yarl’s Wood immigration removal centre, representatives from the healthcare and children’s services teams at Yarl’s Wood, UKBA staff at Yarl’s Wood and the UKBA office of the children’s champion. The call looks at each family in turn and considers factors such as the reasons for detention, progress towards the earliest possible removal and welfare concerns that might weigh against continued detention. We keep this system under constant review and make improvements where necessary—for example, an updated best practice note was issued to participants in the call in November—but we think the system itself is fundamentally sound. For this reason, I think it unnecessary to place the requirement for such a system on a statutory footing. I see no need to legislate for what we do already. Indeed, by setting out the detail in the Bill, we risk denying ourselves the flexibility to continue our process of improvement over time and in the light of experience. I realise that some noble Lords may be concerned that without a statutory requirement, the policy will not be applied with sufficient rigour or consistency. I do not think that is the case. We already have considerable safeguards in place. The involvement of the agency’s children’s champion ensures a significant level of internal scrutiny, and the policy is reflected in the statutory code of practice, Keeping Children Safe from Harm, which came into force on 6 January 2009. The code makes clear that staff who do not follow the code can expect to be subject to disciplinary action. The arrangements will be further strengthened when Clause 51 comes into force and the code is repealed. The process will then have to be applied with regard to the need to safeguard and promote the welfare of children. The guidance that will support the new duty will also require adherence to the policy on detaining children, and failure to do so could be challenged. In other words, it is unnecessary to put ministerial authorisation on a statutory footing because it will be in the guidance which staff will be obliged by primary legislation to follow. However, the detail of the amendment differs slightly from our current practice, so it may be helpful if I address those differences in turn. First, the amendment requires authorisation to be given by the Secretary of State personally. I do not think that that would enhance scrutiny. On the contrary, the Immigration Minister, with his greater focus on the specific issues, is far better placed to scrutinise the lengthy and detailed advice given to him week-in and week-out. Secondly, the amendment requires the consent of the Scottish Minister in relation to children detained in Scotland. Immigration is, of course, a reserved matter and children in Scotland are detained under legislation that applies throughout the UK. Ministers in Scotland do not, therefore, have any role in that decision. The involvement of a different Minister would also risk delaying and complicating a process in which decisions need to be made quickly. The amendment is silent, for example, on what would happen if the two Ministers disagreed. Thirdly, the amendment would allow detention only when there is no alternative. That is attractive superficially but is too narrow in practice. The code of practice on keeping children safe from harm permits detention when "no appropriate alternatives are available". That is a sounder basis for decision-making. Fourthly, the amendment requires the Secretary of State to have regard to guidance issued under Section 11 of the Children Act 2004. Section 11 does not apply to the Border Agency, that is why we are introducing Clause 51, so that reference is technically deficient. The noble Baroness, Lady Miller, mentioned chicken pox at Yarl's Wood. She is absolutely right that it is under quarantine. I wished to visit it myself because, knowing that she and others were going there, I wanted to find out exactly what it was like before anything was said here. I was told that I could not go. I was a bit surprised, because I had chicken pox when I was about nine. I do not know how often the centre has been put in quarantine. Perhaps I may write on that point. The noble Lord, Lord Avebury, and the noble Earl, Lord Listowel, mentioned the issue of checking age. It is correct to say that we went through the process of asking whether we should take X-rays and it was absolutely agreed not to do so. There is no intention for us now to do that. I am not exactly sure where the working party on age determination has got to. Perhaps I may get back on that in writing. Our policy is to accept a local authority, a Merton-compliant age assessment. Of course, that is conducted by a social worker following the guidance outlined in the specific case involving the London Borough of Merton. The noble Earl, Lord Listowel, mentioned the Children's Panel. As I understand it, either the Children's Panel or the local authority picks a social worker who is allocated to the child who then has to estimate their age. I am not sure what difference there is between their choice of social workers. Perhaps I could discuss the detail of that with the noble Earl outside the Committee. On funding, we are not severing our relationship with the Children's Panel. We have agreed to continue to fund the panel for other necessary services for children, so we are not totally withdrawing, but perhaps we may discuss this outside. My noble friend Lord Judd and the noble Baroness, Lady Howe, mentioned effective alternatives to detention. As all noble Lords will know, last year we ran a 12-month pilot in Kent because we are fully committed to exploring alternatives to detention. It would be good if there were something else. That was aimed at failed asylum seekers with children. It explored alternative ways to return families. The pilot ended on 31 October, and we are still assessing all the findings. I do not yet know the final result; the report will be published shortly. When I know more about it, I will let the House know. The noble Baroness, Lady Howe, referred to the comprehensive welfare framework and how it is looked after. At Yarl’s Wood, there is a comprehensive framework and a health-led initial assessment of all children arriving. Ofsted inspects the children’s crèche facilities, which are open daily. There are extensive sport and leisure services, a children’s forum, a statutory children’s social work service and a weekly welfare meeting. I could go on: there are a lot of things there. As I have said, I am keen to see it. I believe that we take as much care as we possibly can to look after the children, who we would much rather not have in detention. The noble Earl, Lord Sandwich, mentioned children pursuing a freestanding claim. Such children—unaccompanied or separated—will not be detained in a removal centre or a detention centre. That is done with children who are with their families, or occasionally a prisoner we are trying to get rid of from the UK who we feel is a threat to our public. The noble Earl also mentioned the Refugee Legal Centre report, which we are considering, and its recommendations. We wish to work with those who made it, but if the Refugee Legal Centre was really serious about working with us, it might have been nice if it had shown or discussed its findings with us before giving them to Channel 4. I know that Lin Homer, the official in charge of this area, is extremely upset by the report. Basically, we reject the vast majority of the report’s findings because treating children with care and compassion is the number one priority for our UK Border Agency. But we will respond formally to that later. I hope that that has answered the various points raised and that I have reinforced the fact that this is not something we like to do. We take it very seriously. We are doing a lot of things to make statistics better. We can still do more and we will do it. On the basis of what I have said, I hope that Members of the Committee will realise, with this fuller explanation and the seriousness with which we take it, that the systems will not be improved by these amendments. I hope that the noble Lord will withdraw his amendment.