My Lords, I am moving Amendment 46 as an understudy to my noble friend Lord Dubs, who apologises that he cannot be here today because of a long-standing commitment.
I will speak also to Amendments 54 and 55 in my name. All the amendments in this group are designed to ensure that we do not overlook the best interests of children who stand to be removed to Rwanda and that we provide a degree of protection for them. These concerns were raised briefly on Wednesday.
Amendment 46, the technical details of which I will not go into as I am advised that the wording may not be perfect, aims to ensure that when an unaccompanied child asylum seeker reaches 18, they are able to challenge a decision to remove them to Rwanda. There are two compelling arguments in support of this. First, having lived in the UK for what could be some time, it would be cruel to uproot an 18 year-old from the life they have forged and the relationships they have developed in order to remove them to a country about which they know nothing.
Secondly, there is the concern put forcefully by the Children’s Commissioner that there is a real danger that the prospect of removal at 18 will result in these children disappearing. This could open them, in her words, to huge risks of exploitation by the kinds of criminal groups that the Bill is supposed to smash. I refer to the Committee’s exchange on morality in our previous sitting. As the Minister, the noble Lord, Lord Sharpe, said:
“It is immoral to facilitate the activity of criminal gangs”—[Official Report, 14/2/2024; col. 292.]
and traffickers and it is “our moral imperative” to stop them. This amendment would contribute to this moral imperative.
I turn to the amendments in my name and those of the right reverend Prelate the Bishop of Chelmsford and the noble Baronesses, Lady Neuberger and Lady Brinton, to whom I am grateful for their support. I am also grateful for the help of ILPA, the Refugee and Migrant Children’s Consortium, and RAMP, of which I am an associate. I shall begin by making some general points and then speak to each amendment separately.
My starting point for the two amendments is last year’s concluding observations of the UN Committee on the Rights of the Child, in which it urged the UK to:
“Ensure that children and age-disputed children are not removed to a third country”.
It expressed deep concern about the potential impact of the Illegal Migration Act, which underpins this Bill, and the lack of consideration for the principle of the best interests of the child. This is clear from the failure to provide a child rights impact assessment until the very last minute of the Bill’s passage, despite repeated calls from noble Lords—and then it amounted to little more than a post hoc justification of the Bill’s measures. Needless to say, there has been no child rights impact assessment of the current Bill. In the debate on the treaty, when I asked whether there would be one, I did not receive a reply.
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UNICEF warned that a blanket provision on inadmissibility and subsequent removal that applied to children without undertaking a best interests procedure
and implementing its determinations would not be compliant with the UN Convention on the Rights of the Child, and in particular Article 3, which, as the noble Lord, Lord Hannay of Chiswick, advised on Wednesday, we need to take seriously. Yet the treaty, while acknowledging the convention, makes no reference to determining a child’s best interests. Concerns about children’s best interests are not assuaged by the treaty’s statement that it does not cover unaccompanied children and that the UK Government will not seek to relocate them, as the Minister reminded us on Wednesday.
The treaty does cover accompanied children, which brings me to Amendment 54. Amendment 54 would require consultation with the Independent Family Returns Panel on how best to safeguard and promote the welfare of children and families due to be removed to Rwanda. Veterans of the Illegal Migration Bill might recall that it disapplied the existing duty, introduced in 2014, to consult the panel with regard to families covered by what is now the Act. The purpose of the panel is to provide advice on the welfare and safeguarding aspects of removal arrangements for families of children facing removal, with particular regard to the need to safeguard and promote the welfare of the children in the family. Importantly, it states that its role includes ensuring that the best interests of children are considered. The Children’s Commissioner has described this role as vital, and she has asked how the Government will ensure that there is appropriate scrutiny of the plans for the removal of a child. Who will consider their best interests?
While it is difficult to see how it could be in any child’s best interests to be sent with their family to a country over 4,000 miles away with which they have no connection, this amendment would at least allow for independent consideration to be given to the welfare and best interests of specific children.
One fear expressed by the Refugee and Migrant Children’s Consortium is that removal to Rwanda of accompanied children could have a devastating effect on their mental and physical health, with implications also for their future development. Yet according to the BMA, Rwanda faces a critical shortage of skilled health workers. How can the Government be sure that the complex mental and physical health needs of child asylum seekers will be met, especially as those needs are likely to be intensified by the process of removal on top of what they have gone through to get to the UK in the first place?
Amendment 54 is a very modest amendment, which would do no more than put back in place safeguards introduced by the Conservatives in 2014. These safeguards are needed more than ever, so I hope that the Minister might be willing to concede it.
I turn to Amendment 55, which is about unaccompanied children. The amendment aims to ensure due process by disapplying the provision of the Illegal Migration Act 2023 which would enable the removal of an individual to Rwanda before a court or tribunal can consider whether they are under the age of 18 and which would limit any judicial review to a point of law rather than consideration of whether the decision was wrong as a matter of fact. The amendment would serve to avoid a situation in which an unaccompanied child is erroneously relocated to Rwanda.
As I have acknowledged, the treaty states that it does not cover unaccompanied children, but it goes on to make it clear that the UK Government would have to deem them to be under the age of 18 to remove the possibility of their relocation to Rwanda. It continues:
“Any unaccompanied individual who, subsequent to relocation, is deemed by a court or tribunal in the United Kingdom to either be under the age of 18 or to be treated temporarily as being under the age of 18, shall be returned to the United Kingdom in accordance with Article 11 of this Agreement”.
In other words, it is tacitly acknowledged that the UK Government might send a child to Rwanda on the grounds that they deem them, wrongly, to be an adult. Should the child challenge the decision, they may have to continue to do so from Rwanda and only on narrow grounds for judicial review.
There are a number of problems with this. First, and most fundamentally, is the high likelihood of the age assessment being wrong. Just last month, a report from the Refugee Council, the Helen Bamber Foundation and Humans for Rights Network catalogued the existing evidence in the absence of reliable data from the Home Office. Over an 18-month period from January 2022 to June 2023, more than 1,300 children were wrongly assessed to be adults by the Home Office. The organisation found children who had been assessed as adults living in an adult setting, including shared accommodation with an unrelated adult. I do not need to spell out the safeguarding implications, an issue which I know is of great concern to the Children’s Commissioner.
I have a statement from the Children’s Commissioner, who says that she is
“deeply concerned about children who are wrongly age assessed and the potential removal/or a threat of removal for these age disputed children. This is even more concerning in the context of the potential of children being sent to Rwanda and the risks that could pose. We know that we are not good enough at age assessment and I have seen shocking examples of those who are wrongly assessed being sent to adult prisons for entering the UK illegally. My concern is that the use of so-called scientific methods will only make this worse. We need to support these children to integrate in their new home and community and not face another huge disruption through removal”.
During the debate on the treaty and at Second Reading, the Minister sought to reassure us about the safeguards to prevent the wrongful treatment of children as adults occurring. He said that:
“The Home Office will treat an individual claiming to be a child as an adult without conducting further inquiries only if two officers—one of at least chief immigration officer grade or equivalent—have separately determined that the individual’s physical appearance and demeanour very strongly suggest that they are ‘significantly over 18 years’ of age”.—[Official Report, 29/1/24; col. 1097.]
That sounds reassuring, but according to the Refugee and Migrant Children’s Consortium it is precisely this practice, with two officials, that has resulted in hundreds of children being incorrectly assessed as adults. It points out that the Chief Inspector of Borders and Immigration and the Chief Inspector of Prisons have respectively highlighted the failings of this supposed safeguard. Indeed, the Home Office’s own guidance for the National Age Assessment Board warns that
“physical appearance is a notoriously unreliable basis for assessment of chronological age”
and that
“demeanour can also be notoriously unreliable and by itself constitutes only somewhat fragile material”.
Yet despite the strong evidence of its failings, we are supposed to be reassured by a test that is accepted to be “notoriously unreliable” and “somewhat fragile”.
Secondly, the Minister pointed out that a challenge to an age decision can be made through judicial review, but, as he acknowledged, only once the applicant has been removed and, under the Illegal Migration Act, on narrow grounds only. As was pointed out in written evidence to the International Agreements Committee, even taking account of the provision for video conferencing under the agreement, it is unlikely that such an approach could be said to be in the best interests of the child.
Thirdly, even if such an appeal is successful, we have the unedifying prospect of a child being sent back and forth like an unwanted parcel—again, hardly in their best interests. Prior to the Illegal Migration Act, a Written Answer to me set out clearly that this should not happen under the MEDP. It said:
“No one undergoing an age assessment, or legally challenging the outcome of an assessment, will be relocated until that process is fully considered”.
Surely, if that was the right thing to do then, it is the right thing to do now, and Amendment 56 would simply take us back to the status quo ante.
I shall finish with a case study from the report I mentioned. Ahmed was a 17 year-old Afghan who arrived on a small boat last June, having been rescued following a frightening voyage. He had photographs on his phone of documents proving his age, but he was not permitted to show them to immigration officers. He was treated as an adult, spent two days at Manston sleeping on the floor in a tent, and ended up in a London hotel, where he had to share a room with an unrelated adult male. He experienced acute distress and discomfort and felt that no one was listening to him. He took himself to a police station and finally, with the help of Humans for Rights Network, was visited by social services and was accepted by them as a child. Under the Bill, Ahmed might have ended up in Rwanda without a civil society organisation to help him. We must try to prevent that happening, so I hope the Minister will seriously consider this amendment. I beg to move.