Borders, Citizenship and Immigration Bill [HL]

My Lords, I am sure that several other noble Lords would like to take up the Minister’s invitation to discuss the duties that are to be placed on the UKBA as a result of Clause 53. In Committee, we were given assurances from the Minister in respect of guidance and commencement. That was further outlined in the Minister’s letter to the Joint Committee on Human Rights, to which reference was made earlier. The Minister assures the JCHR that, as he has just said, the guidance will follow as closely as possible the statutory guidance on making arrangements under Section 11 of the Children Act 2004, although there will be no way of resolving differences of opinion about the extent to which the declared objectives have been achieved. The letter says that the Home Office will liaise closely with key stakeholders in drawing up the guidance. We would like the Minister now to add that a copy of the draft will be deposited in the Libraries of both Houses, so that your Lordships and Members of another place can at least comment on them before they are finalised. As the Minister will be aware from our earlier debates, we would like this clause to apply to all UKBA staff whenever or wherever they come into contact with any child. Staff based abroad, who are exercising immigration functions at juxtaposed controls, at entry clearance points and during escorted removals from the UK, should carry out their duties in relation to children with whom they come into contact whether that child is in the UK or not. As drafted, the clause protects only, "““children who are in the UK””," even though staff abroad exercising a function in relation to a child in the UK are also bound by this, as was the case in the example given by the noble Lord, Lord West, to my noble friend Lady Miller in Committee, where a grandmother applied for a visa to come here to care for a sick child. That did not answer my noble friend’s question, which related to an application for a minor child to join a parent who had been granted refugee status in the UK. As my noble friend pointed out, this is a matter entirely within our jurisdiction, yet we all know of cases where, contrary to the best interests of the child, they have been kept waiting for many years. We are also concerned about the exemption from the duty in Clause 53 of UKBA staff working at juxtaposed controls, at entry clearance points and on escorted removals. In the report Outsourcing Abuse by the Medical Justice Network, which has been referred to in previous sittings and was discussed at a packed meeting that I chaired last year in Committee Room 14 to celebrate the 60th anniversary of the Universal Declaration of Human Rights, reference was made to the alarming fact that 27 allegations involving children had been reported, with one in four of the assaults having taken place at the airport prior to take-off. However, once the flight is on its way, whether to Afghanistan or Sudan, for instance, it becomes much harder for any malpractice to be reported. None of the escorts employed on these duties is UKBA staff. The unpleasant task of removing failed asylum seekers is entirely delegated to contractors. Here again, it is not a matter of transplanting our systems into other countries where there are entirely different arrangements, as the noble Lord has said; it is about seeking to ensure that staff under the control of the UKBA, and particularly its contractors, obey the same rules whether they are in the UK, on a plane flying to an overseas destination, at a consulate or at one of the juxtaposed controls. We have every right to prescribe how officials and contractors should behave in these locations, only refraining from imposing criminal sanctions for any breaches that could impinge on the sovereignty of other states. It might be noted that extraterritorial jurisdiction has been exercised in our law for centuries; in particular, it now protects the trafficked children whom we have just been discussing who are the victims of British criminals overseas. However, in this case we are talking about a code of conduct similar to that issued by the Secretary of State under Section 21 of the UK Borders Act 2007, which does not contain any criminal sanctions at all. We accept entirely that, as with that code, the arrangements now to be made under Clause 53 for the actions taken by UKBA officials or their contractors in relation to offences against children would be limited to reporting what they know to the local law enforcement authorities and, of course, to the police in the relevant UK jurisdiction if the suspected offender is British. If the real reason for the Government’s hostility to this amendment is the fear that it would jeopardise the removal or deportation of a child with his family at the end of the asylum process when their appeal rights had been exhausted, we believe that this is misplaced. In all their duties relating to this process, the police and the local authorities are bound by Section 11 of the Children Act, which has caused no problems. The noble Baroness, Lady Ashton of Upholland, said when the matter was discussed during the Committee stage of the Children Bill in 2004: "““We have been very careful in the way in which we have worded this clause: we do not put a duty on agencies that would make them unable to fulfil their primary functions””.—[Official Report, 17/6/04; col. 995.]" The noble Baroness went on to say that the Immigration Service might do things that would be judged inconsistent with safeguarding and promoting the welfare of children, but in the 2007 Act this objection was overcome in the Section 21 code to the extent that all the acts of its staff in the UK up to and including putting the child on the plane to be removed are covered by the code. Now we are talking about the arrangements that would have to be made beyond that point. We believe that this can be done. If an official in the UK can make arrangements to deport a child to an unsavoury part of the world, the new arrangements could equally allow the consul to refuse a visa, notwithstanding that in both cases the best interests of the child would be served by letting him remain here or by issuing him a visa to come here, as the case may be. The arrangements would have to be drafted so that in both cases the primary purpose of immigration control takes priority, as it does anyway under the 2007 Act. The flexibility of subsection (3) allows the Secretary of State to issue different guidance to officials at overseas posts and in the juxtaposed controls, if necessary making it clear that it is in the treatment of the child other than in making decisions under the immigration Acts that the duty comes into play. We consider that the words, "““who are in the UK””," in Clause 53 are not required to maintain immigration control, but they leave vulnerable children who come into contact with UKBA staff while outside the UK perilously unprotected. I beg to move.