My Lords, I shall speak in support of opposing the question that Clause 34 stand part of the Bill and in support of Amendment 227, to which I added my name. In its
two reports on the last Immigration Bill, the Joint Committee on Human Rights, of which I was then a member, raised serious concerns on human rights grounds about out-of-country appeals. It questioned reliance on judicial review to challenge certification. I note that the Select Committee on the Constitution suggested that we may wish to bear these concerns in mind. Indeed, I see that the current chair of the JCHR has written to the Home Secretary to raise concerns about how extension could result in families with meritorious Article 8 claims being subjected to extensive separation.
A wide range of human rights and immigration organisations has raised concerns on human rights and rule of law grounds, as access to justice is likely to be impeded, as we have already heard. On the rule of law question, ILFA notes that the Government point to the decision in Kiarie, R v the Secretary of State for the Home Department as support for its view that an out-of-country appeal is adequate. However, ILFA responds that a decision that the Secretary of State is entitled to proceed on the basis that an out-of-country appeal will meet the procedural requirements of Article 8 in the generality of criminal deportation cases, where she is balancing the individual’s right against the public interest of deporting someone with a criminal conviction whose presence, it is asserted, is not conducive to the public good, does not necessarily mean that it will meet those requirements in the wider generality of cases covered by Clause 34.
Concerned organisations, including Amnesty, also point out that the consequences of being removed from the UK may be profound and long-lasting, even if removal is for a short time only. Despite the equality statement’s assurance that no adverse impact on grounds of gender are anticipated, as I said at Second Reading:
“Rights of Women is worried about the implications for women migrants who have left abusive partners but who do not qualify to remain under the normal domestic violence rules because of their status, which is a common occurrence. Rights of Women fears that:
‘A mother seeking to remain in the UK as the parent of a child who is wrongfully refused by the Home Office faces the prospect of leaving her child in the UK with an abusive father or taking her child with her forcing them to leave behind a network of friends and family, abandoning their schools and communities and being forced to live in a country where in many instances they have no ties, no understanding of the language or culture’.
It points out that this upheaval could last for months or longer”.—[Official Report, 22/12/15; col. 2491.]
Potential family separation is a concern raised by a number of organisations. Will the Minister confirm that the family test was applied to this provision and, if not, why not? If the answer is yes, would he be willing to publish the conclusions reached, as, to its credit, the Home Office did, in the equality statement Reforming Support for Failed Asylum Seekers? In particular, what impact do the Government believe the policy will have on all family members’ ability to play a role in family life—one of the questions in the family test? The fact that the DWP guidance suggests that this question is aimed mainly at work/family life balance issues should not allow the Home Office to ignore this clause’s potentially much more profound impact on the ability to play a role in family life where families are separated as a consequence of it.
This brings me to Amendment 227. In its recent note on this clause, the Home Office acknowledges its duty under Section 55 of the Border Citizenship and Immigration Act 2009 to,
“have regard to the need to safeguard and promote the welfare of any child in the UK who will or may be affected by any immigration decision”.
It continues,
“where the decision maker is aware that there is a child who is affected by her decision, the decision maker will have regard to the best interests of that child as a primary consideration in deciding the human rights claim and also in deciding whether to certify the claim so that the appeal is heard after the person has left the UK”.
This is clearly meant to be reassuring but it does not reassure members of the Refugee Children’s Consortium, whose experience is that children’s best interests are not systematically and comprehensively assessed within immigration decision-making. Its briefing reminds us that the,
“UNHCR’s audit of the Home Office’s procedures highlights that, at present, there is no formal and systematic collection or recording of information that will be necessary … to a quality best interests consideration. This includes a lack of any mechanisms to obtain the views of the child”.
As the JCHR concluded in its final report of the last Parliament on the UK’s compliance with the UN Convention on the Rights of the Child:
“The Home Office seems still to prioritise the need to control immigration over the best interests of the child. This is unsatisfactory. The Government must ensure that the best interests of the child are paramount in immigration matters”.
In contrast, the Home Office note emphasises:
“While the best interests of the child are a primary consideration, they are not the only or an overriding consideration”.
Of course they are not the only consideration but established case law makes it clear that decision-makers must first understand what course of action would be in the best interests of the child before going on to take account of other considerations, including immigration control.
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On the basis of its experience, the Refugee Children’s Consortium raised the question already asked by the noble Lord, Lord Alton, which I hope the Minister will be able to respond to. It also asked for the Minister’s estimate of how many children are likely to be affected annually by Clause 34. The fear is that thousands of children, including some who are British citizens, will be at risk of separation from their parents or of being removed from the UK without there having been a proper determination of their best interests. It could also mean unaccompanied children being returned,
“to countries and circumstances where they may be at risk of serious harm including sexual abuse … violence, forced marriage, forced recruitment as child soldiers”.
This cannot be right.