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THE BORDER AND IMMIGRATION AGENCY CODE OF PRACTICE FOR KEEPING CHILDREN SAFE FROM HARM CONSULTATION

THE IMMIGRATION LAW PRACTITIONERS’ ASSOCIATION RESPONSE APRIL 2008

ABOUT ILPA ILPA is a professional association with around 1,000 members, who are barristers, solicitors and advocates practising in all aspects of immigration, asylum or nationality law. Academics, non-government organisations and others working in this field are also members. ILPA exists to promote and improve the giving of advice on immigration and asylum, through training, disseminating information and providing research and evidence-based opinion. ILPA is represented on numerous government and other stakeholder advisory groups: for example it was represented on the Border and Immigration Agency Unaccompanied Asylum-Seeking Children Stakeholder Group and has been represented at ad hoc meetings since that group ceased to meet regularly. Our members advise and represent many children subject to, or affected by, immigration control. ILPA has produced substantial research on children, including the Working with children and young people subject to immigration control: Guidelines for best practice (November 2004), the policy paper Child First: Migrant Second: Ensuring that every child matters (2006) and the report When is a child not a child? Asylum, age disputes and the process of Age Assessment (2007). The UK Border Agency has these documents, but they are also available in electronic format on the Publications section of www.ilpa.org.uk or we should be happy to send further copies if this would be of assistance. In May 2007 ILPA responded to the Border and Immigration Agency Consultation Planning Better Outcomes for Asylum-Seeking Children1. ILPA is an active member of the Refugee Children’s Consortium and works with the Consortium, including to press for the UK Border Agency to be made subject to s. 11 Children Act 2004. ABOUT THIS RESPONSE This is ILPA’s response to the Border and Immigration Agency [now the UK Border Agency, and in this response referred to as “UK BA” whether the

1 Available at www.ilpa.org.uk, section on Submissions.

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reference is to events before or after the creating of the new Agency] Consultation Keeping Children Safe from Harm published on 31 January 2008. Many of the consultation questions involve looking at the ‘how’ of a particular proposal and provide no opportunity for respondents to take issue with the ‘why’ of the proposal. For this reason, and to facilitate fuller exposition of our views, we have not used the pro forma response. We have structured our response according to general concerns or issues, and these are identified under the following general headings:

• The Need for a Code of Practice?

• The UK Reservation to the 1989 United Nations Convention on the Rights of the Child

• General Principles

• The Meaning of Harm

• The Right to Legal Representation

• Guardianship

• Communication with Children and Families

• Complaints, Compliance and Monitoring

• Private Contractors

• Staff Training

• Concluding Remarks Further subheadings appear under some of these general headings. We have not, however, ignored the consultation questions; and where our comments fit neatly under one of the consultation questions we have made express reference to the particular question; and expressly indicated a response to the tick box. We have also commented on particular paragraphs of the draft Code of Practice for keeping children safe from harm (“the draft Code”) that has been made available for this consultation, and where we have done so express reference is made to the particular paragraph. These comments on consultation questions and on paragraphs of the draft Code appear within the text under the general headings.

THE NEED FOR A CODE OF PRACTICE? Liam Byrne MP, Minister of State for Nationality, Citizenship and Immigration (“the Minister”) states in the foreword to the consultation:

“Every child does matter – as much if they are subject to immigration control as if they are British citizens. Protecting our border may mean that migrant children who come to this country may not remain here – but it does not mean that in enforcing immigration laws we treat children without proper regard to keeping them safe.”

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A Code of Practice for keeping children safe from harm under s.21 of the UK Borders Act 2007 is a very poor substitute for the statutory duty, already applying to other state agencies such as the police and prison service, under s.11 Children Act 2004 to ensure “that their functions are discharged having regard to the need to safeguard and promote the welfare of children.” The House of Lords expressed its agreement with this view on 17 March 2008 when it voted to make the UK BA subject to this duty2. Similarly the Joint Committee on Human Rights (“JCHR”), which has singled out for particular criticism the UK’s failure to make those agencies dealing with children seeking asylum (they could have added children under immigration control) subject to the duty under s.11 Children Act 20043. If the Minister intends to treat children affected by, and subject to, immigration control in the same way as British children, he should legislate for the s.11 Children Act 2004 duty to apply to the UK BA, as the House of Lords have voted that he should do, rather than introduce a Code of Practice that imposes a significantly lower duty. We note the two objections that have repeatedly been made to this. Firstly, it has been observed that s.11 Children Act 2004 only applies in England. The answer to this objection is to legislate so that the similar duties in s. 17 Children (Scotland) Act 1995, s. 26 Children (Northern Ireland) Order 1995 SI 1995/755 (NI 2) and s.28 Children Act 2004 apply to the UK BA in Scotland, Northern Ireland and Wales respectively4. Secondly, it has been said that adopting the s. 11 Children Act 2004 duty would lead to further legal challenges seeking to frustrate immigration control decisions5. However, there is no explanation why it should be thought that adopting this duty would encourage a child, who would not otherwise have brought a legal challenge to his or her removal or other immigration control decision, to do so. Nor any explanation why adopting this duty would make any substantial addition to the issues within a legal challenge brought by a child, who would have brought his or her challenge whether or not the s. 11 Children Act 2004 duty had been adopted. This objection is also without substance; and we note in addition our comments in respect of the UK’s reservation to the UN Convention on the Rights of the Child (discussed in the next section of this response).

2 Hansard, HL Report 17 March 2007 17 Col 40. See also Hansard HL Report 2 July 2007

Col GC69ff and Hansard HC Report 29 Oct 2007 Col 546ff and, for previous debates on this matter, Hansard HL Report 7 February 2006 col 246, 14 March 2006 col 1206 and 24 October 2006 Col 1079. 3 Joint Committee on Human Rights 17

th report of session 2004-2005 23 March 2005 Review

of international human rights instruments, HL 99/HC 264, paragraph 48. 4 This objection was, for instance, raised by the Government in response to the

recommendation by the Joint Committee on Human Rights that the UK BA be made subject to the s.11 Children Act 2004 duty – see Joint Committee on Human Rights 17

th report of

session 2006-07 25 June 2007 Government’s Response to the Committee’s Tenth Report of this Session: The Treatment of Asylum Seekers, HL 134/HC 790. 5 This objection was also raised in the Government’s response to the Joint Committee on

Human Rights, op cit.

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As the Minister makes express in his foreword to the consultation, there is a need to change the culture of the UK BA “in its attitude and behaviour towards children.” However, adopting a Code of Practice as a means of avoiding the statutory duty to promote and safeguard the welfare of children to which other agencies are committed is a route to embedding a culture at the UK BA that maintains that this group of children is different. This is precisely the genesis of s.21 UK Borders Act 2007 and the draft Code, which was expressly introduced into the Bill in response to pressure to adopt the s.11 Children Act 2004 duty6. It is the antithesis of the Minister’s stated aim of treating children subject to immigration control in the same way as British children. It expressly sets out to preserve a distinct and separate attitude towards children on the part of the UK BA. This embedding of a pre-existing culture is reflected in the current draft, which appears anxious to state what the UK BA should not be required to do rather than to specify what it will positively do to protect children. The draft Code is vague in its statement of obligations to protect children, but by contrast clear in its caveats and limitations. It is an accurate reflection of what needs to change in the UK BA in that it is itself an expression of the current culture rather than a step toward change. ILPA, fellow members of the Refugee Children’s Consortium (including the main children’s and refugee organisations working with refugee children, and indeed other children under immigration control) and those working with children who have been trafficked all agree that the s.11 Children Act 2004 duty should be adopted; and s.21 UK Borders Act 2007 is not suitable as a substitute. On 17 March 2008, the House of Lords voted overwhelmingly in favour of our position when agreeing an amendment to the Children and Young Persons Bill that would adopt the s.11 Children Act 2004 duty7. If despite the unanimity of opinion outside the UK BA, the intention remains to develop a Code of Practice rather than accept obligations under s.11 Children Act 2004, nonetheless s.11 and the guidance produced under it ought to be the starting point. The expertise of departments and agencies that have far more experience in work around safeguarding children ought to be drawn upon. Instead the draft Code appears to have been drafted from scratch. The UK has a comprehensive legislative framework for the safeguarding of all children. This makes no exception for children under immigration control. However, the draft Code appears to reflect ILPA’s experience in meetings with UK BA officials in that it often seems to be assumed by the UK BA that whatever safeguarding takes place can be done ‘in-house’. There remains an incomplete understanding of the roles of other agencies, including the family court. If a child is in care, then to take that child from care, whether to a

6 The Government’s position was set out by the Lord Bassam of Brighton during the passage

of the UK Borders Bill: see eg Hansard HL Report 2 July 2007 col GC69ff, Hansard HL Report 9 October 2007 Col 191ff and Hansard HC Report 29 Oct 2007 Col 546ff. 7 See Hansard HL Report 17 March 2008 Col 29ff.

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location in the UK or elsewhere, involves going through the proper procedures. The UK BA cannot substitute its own procedures for those that apply as a matter or law. Nor can it ignore the child protection framework. For example, to unite a child with a parent from whom they have been separated for their own protection on the steps of a plane that will remove the family from the UK is incompatible with the UK’s child protection laws. The UK BA cannot arrogate to itself powers that vest in the family courts, and duties that fall on other agencies, just because a child is a child subject to immigration control. It does not have the expertise or experience to do so. Moreover, attempting to do so is expressly to treat children subject to immigration control differently from British children in respect of matters that may arise out of, or relate to, but are independent of, their immigration status. As such it is the antithesis of the Minister’s stated aim that:

“Every child does matter – as much if they are subject to immigration control as if they are British citizens.”

Discussions of the forced removal of separated children have been going on in the UK BA for many years. We should have expected by now that there would be a clear understanding of the wider child protection framework and how this must be the framework within which the UK BA carries out such discussions. But we have yet to see any evidence of this. All this points to a further fundamental problem with the intention to adopt a Code of Practice as a substitute for the s.11 Children Act 2004 duty. A Code – and certainly this draft Code – aims to govern or guide operations. However, those operations may be subject to other policy initiatives, and operational instructions in respect of these, which are not necessarily drawn up with the Code and its aims in mind. Thus, operational staff are confronted with expectations that may conflict and the opportunity for the Code to be effective is impaired. By contrast, the statutory duty provided by s.11 Children Act 2004 would clearly apply to the UK BA at all levels; and requires express consideration of the needs of children during both formulation and implementation of policy. THE UK RESERVATION TO THE 1989 UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD Within the draft Code of Practice there is no reference at all to the Convention on the Rights of the Child principles, which clarify the important duty to have regard to the best interests of the child8 and set out how to comply with it. ILPA recommends that the UK’s reservation be withdrawn. At best, the reservation sends out a confusing message to those operating within the UK BA, as well as those carrying out UK BA functions outside it.

8 UN Convention on the Rights of the Child, Article 3

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The Minister says that the UK BA needs to comply with a Code of Practice for keeping children safe from harm, and says that children subject to immigration control matter as much as British children. Yet, at the same time, the government maintains its reservation to the CRC as it applies to entry into, staying in and departure from the UK, thereby expressly creating a category of children (those who are subject to or affected by immigration control) who are not treated as benefiting from CRC principles on a par with every other child. We note the reservation is addressed in the following consultation question: Pro Forma Question 16: Should the UK withdraw its immigration reservation to the UN Convention on the Rights of the Child? This reservation allows the UK to apply its immigration laws without having them interpreted in light of the UN Convention on the Rights of the Child. Tick box answer - Yes. It is not consistent with the Minister’s statement that “every child matters” irrespective of their immigration status, that the UK government should maintain the reservation to the 1989 UN Convention on the Rights of the Child (“the CRC”). The CRC has been ratified by 193 countries but only the UK and Singapore have entered general reservations to the application of the CRC to children who are subject to immigration control. The UN Committee on the Rights of the Child, the monitoring body for the implementation of the CRC, expressed its concern about the reservation from the first moment of considering the UK government’s response in 1995. It described the reservation as being incompatible with the object and purpose of the Convention to protect all children. The government has argued that the reservation is necessary to preserve the integrity of the UK’s immigration laws. However, as the recent opinion commissioned by Save the Children UK and UNICEF UK9 shows, the CRC does not constitute a barrier to an effective immigration control system.

The UN Committee on the Rights of the Child said in considering the UK’s initial report under Article 44 of the Convention in 1995:

“7. The Committee is concerned about the broad nature of the reservations made to the Convention by the State party which raise concern as to their compatibility with the object and purpose of the Convention. In particular, the reservation relating to the application of the Nationality and Immigration Act does not appear to be compatible

9 In The Matter Of The United Kingdom Immigration Reservation To The UN

Convention On The Rights Of The Child, Sandhya Drew, Tooks Chambers, 24 March 2008 and see the legal opinion by the author, together with the then Nicholas Blake QC, for Save the Children of 30 April 2001 on the same topic.

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with the principles and provisions of the Convention, including those of its articles 2, 3, 9 and 10.”10

In 2002 the Committee expressed itself in stronger terms: “the Committee remains concerned that the State party does not intend to withdraw its wide-ranging reservation on immigration and citizenship, which is against the object and purpose of the Convention.”11

The words “against the object and purpose of the Convention” are drawn from Article 51(2): they are the description of a reservation that is not permitted. This is the formulation of a principle more generally accepted in international law. The UN Vienna Convention on the Law of Treaties 196912, which sets out general principles for reservations, states:

“Article 19 Formulation of reservations A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: (a) the reservation is prohibited by the treaty;”

The JCHR shares the view of the UN Committee on the Rights of the Child that the reservation is an illegal one.13 The UN Committee summarised the UK government’s stance in its 2002 recommendation:

“The Committee also recommends that the State party reconsider its reservation to article 22 with a view to withdrawing it, given the State party’s observation that this reservation is formally unnecessary because the State party’s law is in accordance with article 22 of the Convention.”14

In its consultation on the Transposition of the EU Asylum Procedures Directive 2005/85/EC into National Law15 (the ‘Asylum Procedures Directive’) the UK BA prayed the reservation to the CRC in aid of its not incorporating Article 17(6) of the Directive into UK law16. Article 17(6) provides that the best

10

CRC/C/15/Add.34 15 February 1995 Concluding observations of the Committee on the

Rights of the Child: United Kingdom of Great Britain and Northern Ireland. 11

CRC/C/15/Add.188 9 October 2002 Concluding observations of the Committee on the Rights of the Child: United Kingdom of Great Britain and Northern Ireland. 12

Done at Vienna on 23 May 1969. Entered into force on 27 January 1980. United Nations, Treaty Series, vol. 1155, p. 331 13

Joint Committee on Human Rights 17th Report of session 2004-2005 23 March 2005

Review of international human rights instruments, HL 99/HC 264. See also the Committee’s Tenth Report of 2002-03, HL Paper 117, HC 81, para. 49 and Seventeenth Report of Session 2001-02, Nationality, Immigration and Asylum Bill, HL Paper 132, HC 961. 14

Op. cit. The UK website http://www.everychildmatters.gov.uk/strategy/uncrc/process/ is a useful portal from which to access the relevant reports. 15

Autumn 2007 16

See paragraph 79 of the Consultation paper.

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interests of the child must be a primary consideration in the provision of procedural guarantees to unaccompanied children seeking asylum. This reliance on the reservation is contrary to the position put to the UN Committee on the Rights of the Child (discussed above) and the evidence the government has given to the JCHR. The JCHR summarised the government’s evidence:

“The Government justifies this reservation as necessary in the interests of effective immigration control, but states that the reservation does not prevent the UK from having regard to the Convention in its care and treatment of children. It states that, in practice "the interests of asylum seeking children and young people are fully respected" in particular under the Human Rights Act 1998 and that "notwithstanding the Reservation, there are sufficient social and legal mechanisms in place to ensure that children receive a generous level of protection and care whilst they are in the UK." 17

The previous Asylum Policy Instruction on Children summarises the position thus:

“It is, however, IND's policy to seek to adhere to the principles contained in the Convention where possible, subject to the need to maintain an effective immigration control. In particular caseworkers should bear in mind the core principles of best interests, the right to participation and non-discrimination”18.

Has this position been abandoned? When the UK BA deliberates whether to withdraw the reservation, we suggest that it have regard to the UK’s obligations under European Union Law, notably under the Asylum Procedures Directive discussed above, and the EU Asylum Reception19 and Qualification20 Directives in the cases of children seeking asylum. Even if the UK reservation to the CRC were lawful as a matter of international law, it would still be a reservation specific to the CRC. It could in no way reduce the UK’s mandatory obligations under European Union law. GENERAL PRINCIPLES A simple statement of principles at the beginning of the Code might assist to embed a change of culture in the UK BA and those contracted to work for it, since a statement of principles would be readily transferable to training, guidance and instructions (oral and written); and might reasonably be capable of existing as a stand alone document that was easy to refer back to. As such, it would provide a tool for individual members of staff, the UK BA and

17

HL 99/HC 265, op. cit. supra. at paragraph 47. 18

API as previously set out on www.ind.homeoffice.gov.uk and no longer publicly accessible. 19

2003/9/EC 20

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external agencies to use to be able to monitor the UK BA and hold it to account. However, to achieve this, principles would need to be clear, strong and general in nature. The draft Code is weak on principle; and this is made worse by the repeated caveats and limitations it contains. If the UK BA is to achieve a change of culture in which staff are encouraged to think proactively – an aim that was expressly endorsed by Lin Homer, Chief Executive of the UK BA, when addressing stakeholders upon the draft Code21 – principles must meet the criteria we describe and general caveats and limitations must be avoided. Otherwise UK BA staff will be likely to subordinate the aims of the Code and any willingness to think proactively to other more familiar, clear and target-led instructions. Paragraph 3.2.2 of the draft Code provides an egregious example of this concern (both because of the wording used and because of where this paragraph sits in the context of the draft) where it is stated that:

“Staff must approach their dealings with a child or a case involving a child with a view to being as responsive as possible to the needs of the children involved without over-riding the purpose of their work.”

Even if it were not the case, as the Minister rightly accepts it to be, that a change of culture is needed within the UK BA, such a broad caveat upon the requirement to have regard to the needs of children would stand as an open invitation to staff to simply ignore or fail to comply with the Code’s provisions or aims. If the Code is to have any substance, deviation from clear statements of principle or responsibility should not be permitted except in clearly defined and exceptional circumstances; and with prior authorisation from someone of appropriate seniority. Examples of general principles to set out within the Code:

• The duty to safeguard and promote the welfare of children.

• Where consent of a child is required it is essential that such consent is informed.

• The independent role and responsibilities of others working with children must be respected, as must the importance of the relationship between a child and such other persons or agencies.

• Physical environments in which children are placed must be appropriate for the child and shall be welcoming and conducive to any participation which may be expected of the child.

We have not sought to identify an exhaustive list. However, in other sections of this response we have drawn attention to further points of principle that we consider should be adopted. We note the draft Code also identifies some principles. However, these are not drawn together except where three points

21

This was said at the roundtable discussion organised by UK BA on the afternoon of 11 April 2008, at which ILPA was represented by Steve Symonds, ILPA Legal Officer.

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are listed as key principles at paragraph 3.2.1; and this list does not constitute an exhaustive list even of the limited points of principle that can be found in the draft. Given section 3.2 purports to set out the framework for the entire Code and its general aim, and paragraph 3.2.1 on its face purports to be the list of key principles for that purpose, it is highly unsatisfactory that other principles are not also listed here – e.g. what is stated to also be a key principle at paragraph 3.1.8:

• The UK BA must act to protect children from harm arising from the actions of others but without unwarranted intervention in families’ lives or unnecessary weakening of family relationships.

We would suggest also that the starting point of principle identified in the Minister’s foreword to the consultation document should be included:

• Every child does matter – as much if they are subject to immigration control as if they are British citizens.

The need to identify principles clearly and in general terms is exemplified by the point listed as key principle (i) at paragraph 3.2.1 of the draft Code. Properly analysed this contains two points of principle that would be made clear by stating these separately:

• Immigration procedures and situations must be responsive to the needs of children.

• Time must be made available for appropriate communication with children and families.

Moreover, as drafted, this point contains an unnecessary limitation – “about immigration procedures”. If time is needed for appropriate communication about something other than procedure (e.g. the substance of a child’s asylum claim), then it is no less important that time is made available. We note the statement at paragraph 3.1.13 of the draft Code as to the intention to support the Code by operational instructions. However, the draft Code needs to apply to and govern all existing and future operational instructions – whether or not these are drafted with a specific intention of supporting the Code. As indicated earlier, this means that the Code needs to apply in relation to policy formulation and implementation; and we identify the following principle:

• This Code applies equally to operational staff and those staff responsible for policy; and policy must be made with regard to this Code so that operational staff can be reasonably expected to implement such policy with regard to this Code.

The following consultation question is directed to operational instructions envisaged as supporting the Code:

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Pro Forma Questions 5 (& 6): Whether it would be appropriate for UK BA to draw up operating instructions for a selection of occasions/groups Tick boxes answer - Tick boxes are not appropriate in this context. An unsuccessful attempt has been made to reduce this to a tick box formula. Expressions such as ‘detention activities’ and ‘escorting activities’ are opaque and seem to equate deprivation of liberty with playtime. We suggest that the UK BA examine first the existing government guidance that applies to every child within the jurisdiction, regardless of immigration status, and in all instances uses this as its starting point. From there the UK BA needs to revisit its existing operational instructions to ensure Code-compliance and, whereas there may be value in further operational instructions specific to children, it should first and foremost be ensured that specific consideration is given to the circumstances of children in relation to existing instructions. Where necessary (see for example, our response in the section “The Right to Legal Representation” below in relation to Chapter 60 of the Enforcement Instructions and Guidance) existing instructions should be amended. More generally, we note that the absence of the operational instructions at this time significantly impairs the value of this consultation. We trust that any instructions which are forthcoming will be made publicly available and that ILPA and others will have the opportunity to comment upon them before they are implemented. THE MEANING OF HARM ILPA concurs with the positive statement at paragraph 3.1.9 of the draft Code of Practice that the Children Act 1989 definition as to what constitutes harm to a child, both in relation to their health and development, will apply in the context of immigration control. This brings with it an obligation to look at the further information provided in guidance under the Children Acts as to how harm as therein defined is to be identified and avoided. The guidance is as important as broad statements. There have been problems in the past. While the 14th preamble to the Asylum Procedures Directive22 speaks of the vulnerability of children, the consultation document on the transposition of that Directive23 made reference to their ‘potential vulnerability’. A robust approach must be taken to ensure that no similar attempts are made to water down the

22

Op. Cit. 23

Op. Cit.

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Children Act 1989 definition of harm in applying it to the UK BA. The draft Code does not inspire confidence that a robust approach will be taken. There is silence in the draft Code as to how children will be safeguarded from such harm in practice. In this section we highlight, under discrete subheadings, some areas where the risk of harm to children is particularly significant and in relation to which the draft Code is significantly inadequate. Interviews The draft Code makes express reference to interviews within section 3.3. Paragraph 3.3.5 provides a good example of how the current draft contains caveats that fundamentally undermine what ought to be a general point of principle. That paragraph concludes:

“Wherever possible the interview room and surroundings must be welcoming and conducive to a child’s participation in the interview.”

We have in the previous section suggested a principle that would cover interview space, but which would apply to other environments in which a child may be placed. More fundamentally, the caveat at paragraph 3.3.5 – ‘wherever possible’ – adds nothing to the principle that is there sought to be enunciated; but what it does do is encourage UK BA staff (be they responsible for conducting interviews, or responsible for requisitioning and maintaining interview space) to fail by design or neglect to provide a suitable interviewing environment. It will be too easy for an individual, who considers a Code drafted in such terms, to dismiss a child’s particular needs on the basis that it is ‘not possible’ to accommodate these. More broadly, confidentiality and hence privacy of interview space is a pre-requisite; and any statements within the Code concerning the interview space (e.g. paragraph 3.3.5 of the draft Code) ought to make this clear. There is no clarification in the draft Code of what constitutes a ‘child-friendly’ interview room. Presumably this excludes glass partitions and is in a separate area from the adults? This needs to be set out clearly in the Code. It is not merely the physical environment that needs to be considered. Interviewing a separated child about an asylum claim or trafficking history may, for example, have profound implications for the child’s emotional or mental well-being. Although paragraph 3.3.6 provides some recognition of these concerns it is particularly deficient in failing to recognise the potential for re-traumatisation. It also fails to give any guidance as to how and by whom “cognitive and linguistic abilities” will be assessed; or (and this deficiency is repeated in section 3.6) as to how and when to make a referral for such assessment. As regards the latter, we note the failure to have regard to the UNHCR Handbook (referred to under the next subheading). In respect of assessing a child’s ‘linguistic abilities’ is the UK BA proposing to have its interpreters specially trained to interpret in child interviews? Presumably this would be the only way to ensure that the child’s linguistic needs are met.

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A further deficiency is the failure to state clearly that children will be treated with priority, for example interviewed on arrival and not expected to wait. Similarly, the draft Code fails to give clear guidance as to how long a child may be interviewed. There is no mention in the Code that the interview will be ‘non-adversarial’ for children. The reference to a ‘responsible adult’ at paragraph 3.3.5 is deficient in failing to clarify the role of the responsible adult – including the role he or she may need to play in ensuring the child’s welfare during an interview. It should be set out in the Code that children under 16 years old should be interviewed in the presence of their social worker as the responsible adult. All children should have the opportunity to be legally represented at interview in addition to a responsible adult being present. All children should have their interviews tape-recorded. In addition, we note that there is no specific consideration of the situation of children when adult parents or carers are being interviewed; and the draft Code provides virtually nothing of principle or guidance that might be expected to inform UK BA staff behaviour in such circumstances. Childcare facilities are not currently provided throughout the UK BA. However, when adult asylum applicants are interviewed about the substance of their asylum and human rights claims in the presence of their dependent children, their children are likely to see them distressed and to hear sensitive disclosures. This can also apply to other children under immigration control. This risks causing harm to the child – whether directly in view of what the child may see or hear; or indirectly in view of the effect upon the relationship between the child and parent as a consequence of disclosure being expected in such circumstances. Moreover, it is plainly not conducive to disclosure by the adult; and the consequence of incomplete disclosure may be an unsafe decision on an asylum or human rights claim, which in turn risks that the child (and adult) may face prolonged uncertainty over their immigration status, prolonged litigation of that status or even removal to a situation where either or both are at immediate risk. Childcare should be provided for interviews where there are dependent children. The same applies for immigration and asylum appeal hearings in the Asylum and Immigration Tribunal (“AIT”). Refugee status determination It is a striking deficiency in a draft Code, which has a stated purpose of keeping children safe from harm and which is primarily addressed to the UK BA whose responsibilities include determining claims for asylum, that key principles relating to refugee status determination are absent. In particular, there is no reference to the principles set out in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees

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(Handbook,1992); particularly in the assessment of the claim of a separated child at paragraphs 213ff. Key issues there include consideration of a child’s credibility and the “liberal benefit of doubt” to be applied (Handbook, paragraph 219); referral to experts in relation to a child’s mental development and maturity (Handbook, paragraph 214); and the need to appoint a guardian (Handbook, paragraph 214). These principles should be incorporated within the Code and/or within operational instructions, and UK BA staff should be trained on the UNHCR principles. Specific recognition ought to be given to child-specific forms of persecution, a need to which the EU Qualification Directive24 expressly refers at paragraph 24 of the preamble and at Article 9.2. This particularly needs to be reflected in the practice of both case owners and those responsible for compiling and disseminating country of origin information. The relevant principle here is:

• Country of origin information must give specific consideration to the circumstances of children; and regard must be had in such information and in decision-making to child-specific forms of persecution.

Moreover, case owners should be expected to consider the particular circumstances of children in asylum claims even where children appear only as dependent on the claim of a parent or other adult carer. The following consultation question would apply to a wider range of circumstances than where claims for asylum have been made but is brought sharply into focus in these cases: Pro Forma Question 10: Whether it is thought that there should be a requirement for a written statement relating to the consideration of the effect of removal on the child, when children are being removed as part of a family? Tick box answer – This question does not admit of a tick-box answer Separate consideration of children who are with a family is important. The key thing in the case of both children in and not in families is to have a process that is right. The record keeping flows from that. We are accustomed to one-liners saying no more than “I have considered human rights and I do not consider that they change this decision” or words to that effect. Such statements would be of little utility. It is important that people see and have a real opportunity to challenge any statements made. Moreover, as we have indicated, it is not simply at the end of process that the circumstances of children need to be considered.

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Appeals procedures The draft Code is silent as to appeal procedures. However, the conduct of an appeal may have profound implications for a child’s health and development as understood at paragraph 3.1.9. Guidance is particularly necessary for, but not limited to, how representatives of the UK BA will conduct appeal hearings including any cross-examination of children but also wider considerations of how to respond to circumstances where adjournments may be needed and the presentation of evidence in these appeals. Appeals proceedings are adversarial. By that very reason, it is especially important that the draft Code ought to expressly draw attention to the role of the UK BA in these proceedings. This is because their adversarial nature may risk causing harm to a child; and because of the risk that a representative of the UK BA may lose sight of his or her responsibilities towards a child because of the adversarial nature of the process in which he or she is engaged. Paragraph 3.2.1 states that specific immigration procedures and situations need to be made responsive to the needs of children. Section 3.3, however, specifies particular kinds of procedures where this is to apply. Nowhere does the draft Code address the procedures, practices and rights of the child during the appeals process. More generally, the draft Code ought explicitly to recognise that the principles and duties envisaged under the Code do not end when the primary responsibility or control of processes to which the child may be subjected pass from the UK BA to other agencies, such as the AIT. It is a feature of the specific procedures identified in the draft Code that these are all ones within the direct control and responsibility of the UK BA. Accordingly, we would suggest adopting the following principle:

• Responsibility towards children extends to processes which are formally controlled by external persons or agencies, including court proceedings.

Prosecutions Another area about which the draft Code is silent relates to prosecutions of children or their parents for immigration offences – e.g. under s. 2 Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 if they fail to produce an immigration document. A decision to prosecute a child or his or her parent has potential to cause harm to the child. It is wrong to penalise – especially by way of criminal prosecution – children for breaches of immigration law over which they may have little or no understanding or in which they may have little or no choice. This applies to both criminal measures (such as s. 2 Asylum and Immigration (Treatment of

16

Claimants, etc.) Act 2004) and administrative measures (such as paragraph 320(7B) Immigration Rules).25 Age disputes The draft Code gives no clear framework as to the principles on which the UK BA will rely in determining age when children have their age disputed. ILPA’s research When is a child not a child: Asylum age disputes and the process of age assessment (2007) is at the time of writing before the Ministerial Working Group looking at how to improve the process of age assessments. That research found that age was disputed in 2005 and 2006 in nearly half of the applications made by people who identified themselves as under 18. Given a lack of official statistics we examined the Refugee Council’s Children’s Panel statistics. In a sample of 164 cases from March 2005 to 2006, 49% of age-disputed cases went on to be assessed by local authorities as children and supported by them. The attitude toward harm has perhaps been exemplified by the UK BA’s continued interest in the use of ionising radiation (x-rays) to determine age despite their lack of probative value and the consensus among professional bodies that the use of ionising radiation for non-therapeutic purposes is unethical. In his preface to When is a child not a child? the Children’s Commissioner described one of the arguments deployed by the UK BA in their consultation document Planning Better outcomes for asylum-seeking children, concerning the use of X-rays to date children’s birth as “deceitful and duplicitous”. A legal opinion by the then Nicholas Blake QC and Charlotte Kilroy of Matrix Chambers26 concluded that to ‘subject’ a child to a medical examination would be an assault. It concluded that consent to a medical examination given by a child in circumstances where s/he is told that a refusal to give her/his consent will adversely affect a decision on her/his age or asylum application cannot be described as freely given and identified the risk of unlawful action where valid consent was not obtained. Proposed changes to the immigration rules on this issue did not appear in the rules as enacted. ILPA was not alone in being surprised that x-rays were on the agenda for the Ministerial Working Group. Nor in being surprised that in the January 2008 UK BA paper Better Outcomes: the way forward: improving the care of unaccompanied asylum seeking children it was stated that:

25

This measure introduces mandatory bans upon returning to the UK which last for varying periods of time, up to 10 years from the time a person leaves the UK, if they have committed certain breaches of immigration laws. Concerns regarding the effect of this measure upon children were expressly raised with the Minister by the Joint Committee on Human Rights when the Minister gave evidence to them: see Uncorrected Oral Evidence given by Liam Byrne MP, Minister of State, Home Office and Lin Homer, Chief Executive, Border and Immigration Agency, 19 February 2008 to the Joint Committee on Human Rights available at: http://www.publications.parliament.uk/pa/jt200708/jtselect/jtrights/uc357-i/uc35702.htm 26

In The Matter Of A Proposed Amendment To The Immigration Rules 7 November 2007

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“There is presently a lack of consensus among stakeholders about the merits of x-rays as a means of accurately assessing age.”27

We have yet to identify any respondents who were in favour of x-rays to assess age. Opponents include the Children’s Commissioner, all the children’s and refugee organisations of which we are aware, the medical professional bodies and the legal profession. We asked at the Corporate Stakeholder Group on 1 February 2008 for the evidence on which this statement was based and followed this up with an email on 31 March 2008 but we have yet to see any information. Detention The draft Code gives no clear framework as to the principles the UK BA will rely on when making a decision to detain – whether in relation to separated or age-disputed children or families who are subject to immigration control. It addresses detention specifically at section 3.4. At paragraph 3.4.1, it only says that detention will be a “last resort”. This reflects current guidance but is not, in ILPA’s view (which is supported by research by organisations such as Bail for Immigration Detainees28) reflective of current practice. Moreover, this provides no guidance as to the harm detention may cause, and which at the very minimum ought to be fully and carefully considered before any decision to detain and throughout any period of detention. In our view children subjected to detention would in all cases be harmed as defined. We are familiar with, but unimpressed by, the suggestion at paragraph 3.4.2 that the UK BA requires the power to detain separated children for their own protection if they arrive unaccompanied late at night, for example. An emergency social services response is the correct response, not the placing of a child in immigration detention. In circumstances where the child is at risk and is reluctant to stay, emergency protection measures under Part V Children Act 1989 provide all the necessary powers to ensure the child’s safety. If UK BA staff are not trained in how to activate these interventions by those who can protect children, that training need should be addressed as a matter of urgency. Orders under s. 44 Children Act 1989 or police powers under s. 46 of that Act provide the necessary powers to protect children from harm. Detention is raised in the following consultation question: Pro Forma Question 9: Whether it is thought that families should be detained as an alternative to separating children and parents in the time leading up to departure?

27

Paragraph 5.3 28

See for example the documents listed at http://www.biduk.org/library/children.htm

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Tick box answer – This question does not admit of a tick-box answer. All decisions on detention should take into account the best interests of the child, including at the stage when the detention of the parent(s) is under consideration. There are other alternatives to detention, such as the continued or increased frequency of reporting conditions for the parents. THE RIGHT TO LEGAL REPRESENTATION Within the draft Code there is no recognition of a child’s right to legal advice and representation, or recommendation to ensure provision for this. This is another principle that the Code ought expressly to recognise:

• Children must be granted appropriate and timely access to free legal advice and representation.

If the UK BA is committed to keeping children safe from harm, it must acknowledge the child’s right to good quality, independent, confidential legal advice. This includes so that the child has independent legal assistance in ensuring that the protection of his or her needs, which ought to be provided by the Code, is indeed provided. ILPA wrote to Matthew Coats, Director and Board member of the UK BA with responsibility for immigration and asylum, on 5 March 2008 to express concern that separated children were being asked to approve the content of their asylum interviews without having these read back to them, a proceeding discontinued even for adults some years ago. The response to the letter, dated 28 March 2008, stated:

“Having the interview record read back to the child or young person is an option but this would lengthen the interview and may cause additional stress. I appreciate the reasons for your request however, and will consider it.”

This is an example of arguments ostensibly based on the welfare of children being misused to deny children important rights. In the circumstances described ILPA’s advice to its members would be to advise their clients not to approve the interview record. ILPA does not accept that the time spent on reading through is more stressful than a wrongful refusal and, in the worst case scenario, refoulement as a consequence. As to section 3.6 in relation to the UK BA making referrals on behalf of children to keep them safe, there is no mention of legal representatives being a “relevant agency” in any of the given “circumstances”. By way of example, we highlight a potentially harmful situation where a child is in detention with removal directions to his or her home country. In this situation, it would be appropriate for UK BA to actively refer the child to a legal representative for advice.

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By contrast, Chapter 60 of the UK BA’s current Enforcement Instructions and Guidance expressly exempts the UK BA from any obligation to give notice to a separated child or his or her legal representative of the child’s removal under third country removal arrangements controlled by the UK BA’s Third Country Unit29. This is inconsistent with proper regard to the child’s safety and the stated purpose of the draft Code. Chapter 60 of the Enforcement Instructions and Guidance is in urgent need of revision. GUARDIANSHIP The lack of guardians for unaccompanied children, be it people standing generally in loco parentis or CAFCASS style guardians, to support them through the immigration procedures to which they are subject is an enormous gap in UK provision for children subject to immigration control. It also appears contrary, in its application to children seeking asylum, to the EU Reception Directive.30

“Article 19 Unaccompanied minors 1. Member States shall as soon as possible take measures to ensure the necessary representation of unaccompanied minors by legal guardianship or, where necessary, representation by an organisation which is responsible for the care and well-being of minors, or by any other appropriate representation. Regular assessments shall be made by the appropriate authorities.”

The EU Qualification Directive31 states that:

“Article 17 Guarantees for unaccompanied minors 1. With respect to all procedures provided for in this Directive and without prejudice to the provisions of Articles 12 and 14, Member States shall: (a) as soon as possible take measures to ensure that a representative represents and/or assists the unaccompanied minor with respect to the examination of the application. This representative can also be the representative referred to in Article 19 of Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (1); (b) ensure that the representative is given the opportunity to inform the unaccompanied minor about the meaning and possible consequences of the personal interview and, where appropriate, how to prepare himself/herself for the personal interview. Member States shall allow

29

See section 60.6 of the policy instruction at: http://www.ind.homeoffice.gov.uk/sitecontent/documents/policyandlaw/enforcement/detentionandremovals/chapter60.pdf?view=Binary 30

2003/9/EC 31

2004/83/EC

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the representative to be present at that interview and to ask questions or make comments, within the framework set by the person who conducts the interview. Member States may require the presence of the unaccompanied minor at the personal interview, even if the representative is present. 2. Member States may refrain from appointing a representative where the unaccompanied minor:

(a) will in all likelihood reach the age of maturity before a decision at first instance is taken; or (b) can avail himself, free of charge, of a legal adviser or other counsellor, admitted as such under national law to fulfill the tasks assigned above to the representative; or

(c) is married or has been married.’ ….[the article continues]” Under Article 10 of the Council of Europe Convention on Action Against Trafficking in Human Beings,32 when a child who is unaccompanied has been trafficked, States are obliged to appoint a legal guardian who will act in the best interests of that child, take steps to ascertain his or her identity and nationality, and locate his or her family. ILPA highlights that both the UN Committee on the Rights of the Child and UNHCR recommend that a guardian or adviser should be appointed as soon as an unaccompanied child is identified. The guardian or adviser should have the necessary expertise in the field of child-caring so as to ensure that the rights and best interests of the child are safeguarded, and that the child’s legal, social, medical and psychological needs are appropriately met during the refugee status determination procedures until a durable solution for the child has been identified and implemented. To this end, the guardian or adviser would act as a link between the child and existing specialist agencies/individuals who would provide the continuum of care required by the child. The UN Committee on the Rights of the Child and UNHCR recommend that the guardian or adviser should be maintained until the child has either reached the age of majority or has permanently left the UK. The guardian or adviser should be consulted and informed regarding all actions taken in relation to the child. The guardian or adviser should be expected to work in close co-operation with the case owner, care workers, social workers, legal representative and immigration officials. ILPA urges that these recommendations by the UN Committee on the Rights of the Child and UNHCR and developed in ILPA’s Guidelines, be taken on board. We note there appears to be serious misunderstanding as to the role of a guardian and the role of a legal representative at the heart of Government. We have recently written to the Lord Adonis, Parliamentary Under Secretary for Schools and Learners, on this subject; and we append a copy of that letter to this response.

32

CETS No. 197, opened for signature 16 May 2005, into force 1 February 2008.

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COMMUNICATION WITH CHILDREN AND FAMILIES Paragraph 3.1.6 of the draft Code makes express reference to communication in relation to the best person(s) to communicate a decision about a child’s future; but it is unclear what the scope is here. Potentially the provision for children to participate in decision-making could be alluding to children being interviewed even where they are accompanying their parents to the UK on asylum and human rights grounds; and when they are dependent on a parent’s claim. We expect that such an allusion is not intended as it is plainly not appropriate; and were it to be intended we would expect an opportunity for specific consultation. We note two consultation questions relating to communication with children and families: Pro Forma Question 3: Who should have the primary responsibility for communicating with a child about the immigration process? Tick boxes answer - None of the answers are appropriate because the question is not appropriate. A child’s parent may or may not understand the immigration process. What is vital is that the family receive proper independent legal advice so that parents are not required to muddle through for themselves or to rely solely on information from the UK BA. ILPA recognises that legal representatives have a responsibility to consider whether they need to speak to children, and to provide information that will assist parents in explaining matters to their children, or work with parents to do this. It is a misuse of the best interests principle simply to say ‘parents should explain’. The foregrounding of these questions appears to imply that the responsibility and consequences for children of inadequate explanations must lie with the parent(s). However, if there is a dawn raid on premises where there are children, the UK BA staff are not, we assume, going to refuse to answer any questions put directly to them by a child although one would expect them to work with the parents in doing so. The term child covers those up to 18 years of age. Older children may be very capable of receiving explanations in their own right. Where children are alone, they require a guardian as well as legal representation (see previous discussion above). If UK BA staff say something different from what is said by the parent, the child will decide who to believe. Even very young children do this. A procedure is not going to change a child’s belief systems.

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Pro Forma Question 8: Whether we think that families that face removal could benefit from the provision of information and counselling on the conditions and prospects available to them in their own country Tick box answer – The question as put does not admit of a tick box answer. Reference is made to our response to pro forma question 7 (which is addressed within our Concluding Remarks below). In the case of children, informed consent and best interests are the two legal principles that must be satisfied. Provision of information and counselling may be integral to these, they cannot substitute for them, and without an independent guardian and access to legal advice so that the child can evaluate material proffered then the matter of informed consent remains complex. These methods do not offer the UK BA any shortcuts. As to families, both adults and children need access to independent legal advice if facing removal. COMPLAINTS, COMPLIANCE AND MONITORING The draft Code makes clear at paragraph 3.1.1 that:

“Staff members who do not follow this Code can expect to be subject to disciplinary action.”

If that statement is to have substance, the Code needs to be clear about the principles and responsibilities which staff are required to implement. As indicated previously, there is very little of substance in the draft Code. Moreover, where substance appears it is fundamentally undermined by caveats and limitations upon the principles and responsibilities it might otherwise establish. If substance that might otherwise appear in this Code is to be passed to separate operational instructions – as appears to be envisaged by paragraph 3.1.13 – then this warning as to disciplinary action ought to include failure to follow those instructions. (Though note our earlier caveat about the need to have regard to all operational instructions – whether or not drafted specifically for the purpose of this Code.) We draw attention to private contractors below. However, we note here that it is not only staff, but private contractors, who ought to expect sanctions for failures to follow the Code. The current reference to sanctions would also be improved by detailing the sanctions that may apply. The following consultation question concerns self-reporting of breaches of the Code:

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Pro Forma Question 1: Whether there should be a requirement for UK BA staff members to record and explain their reasons in writing if they have departed from the Code or from any instructions issued in support of the Code Tick boxes answer - None of the answers are appropriate because the question is not appropriate. The Code ought to be followed; and it ought to drafted in a way which means it sets out principles and responsibilities that are sufficiently clear and mandatory so that they can be followed. As indicated previously, it is not acceptable that failures to follow specific requirements can be allowed for by general caveats and limitations upon the principles and responsibilities that the Code adopts. As the Code is currently drafted, it is not at all clear what is envisaged by this question to be a departure in respect of much of the Code’s content. If a member of staff were to conclude that it was not possible to provide a ‘welcoming and conducive’ interview space (see paragraph 3.3.5) because he of she considered that to make such arrangement might delay the NAM timetable for concluding an asylum claim, and hence that the interview should proceed at an inappropriate venue so as not to ‘over-ride the purpose of his or her work’, would that member of staff have applied or departed from the Code? If the Code met the criteria we have elucidated previously (especially under the heading General Principles), we would envisage that departures from the Code would only be allowed in clearly defined and exceptional circumstances; and with prior authorisation. If this is what is meant by departure in this question, we agree that it would be appropriate that a clear written record is made on the file – by the person authorising the departure – of the reasons why the clearly defined and exceptional circumstances were considered to exist in the individual case. However, as the Code is currently drafted, this is no more than speculative observation upon what might be appropriate in relation to a radically different document. We are unwilling to extend that speculation very far, but would observe that a Code which provided clear and mandatory principles and responsibilities would be one in respect of which we would expect a ‘departure’ to be identified as a breach. Indeed that is in keeping with the statement at paragraph 3.8.1 of the draft Code. In those circumstances, it would be fanciful to imagine that breaches of the Code would be self-reported (whether by UK BA staff or by private contractors) in the way envisaged by this question. The following consultation question flows on from this: Pro Forma Question 2:

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Who should review recorded departures from the Code? Tick box answer - None of the answers are appropriate because the question is not appropriate. ILPA would expect UK BA line managers to be looking closely at all breaches by staff and taking appropriate disciplinary action, but this is not an adequate safeguard in itself. Review of the UK BA’s adherence to the Code must be made by persons external to, and independent of, the UK BA. The role of the new Chief Inspector should be considered in this regard. As with the preceding consultation question, ILPA is concerned that no express reference is made to breaches to the Code by private contractors carrying out UK BA functions in this question. The draft Code, at paragraph 3.8.1, envisages that complaints in relation to the Code may be made through the UK BA complaints system. The consultation includes the following specific question: Pro Forma Question 4 Whether there should be a dedicated complaints system for children to access within UK BA Tick box answer – Yes We would envisage a dedicated complaints system within the existing UK BA complaints system. This should be supported by written material that is specifically drafted with children in mind; and operated by members of the UK BA complaints system with specific training and experience in the needs of children. Such a system ought not to be unduly prescriptive; and hence capable of ensuring that whether or not a complaint was formally presented as a complaint that it was treated as such. It should also ensure that where a child makes a complaint about e.g. treatment by a member of staff at the Asylum Screening Unit or a procedure there, the UK BA complaints system is able to link this with the complaint of another child or indeed an adult about the same person or procedure. We note that legal representation and guardianship – both of which we have addressed in this response – have an important part to play in the effective use of complaints systems by children. Again ILPA is concerned that no mention is made in relation to complaints about breaches to the Code made by private contractors carrying out UK BA functions in this question. We note other provisions in the draft Code in respect of accountability, transparency, inspection and monitoring; and we have explained above that we do not consider self-reporting to be an appropriate method of

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accountability. However, we wish to note some further concerns in relation to the limitation of complaints processes as a means to monitor compliance including in relation to the Code:

(i) At the UK BA Complaints Audit Committee meeting on 17 March 2008, Mr Joe Dugdale, who has led the implementation of the UK BA’s new complaints procedures, acknowledged that while complaints are a very useful source of management information they cannot give the whole picture.

(ii) Many adults and many children are unlikely to be aware of the Code of Practice. Even if children are aware of it, this does not mean that they will identify where UK BA have breached it. The vague nature of the Code means that we as lawyers find it difficult to pin down what the UK BA will treat as a breach in practice. Even supposing that a child is aware of the Code and that it has been breached, he or she may not be aware of the complaints procedure;

(iii) There may be circumstances where knowledge of the existence and contents of the Code is not required for a complaint to be made that UK BA identifies as a breach of the Code. However, whether a person complains about the way they have been treated is to a large extent dependent upon their expectations. Children may have no clear idea of what to expect from the process.

(iv) Not all breaches of the Code will be visible to the child who suffers because of them.

(v) There is a low incidence of complaining by clients in immigration and asylum. Lawyers who urge their clients to complain about treatment that breaches rules and policy often find clients unwilling to do so, for fear that this will prejudice their application, or simply because they have progressed in their application and the breach and its effects are in the past. Children may be less mature, assertive or aware of their rights and entitlements and this will affect their likelihood of complaining, as their fear of the consequences of complaining on them and their immigration case may be greater.

(vi) Unless children are referred to a legal representative or to an agency specialising in children’s rights and advocacy, children are unlikely to be able to articulate and submit a formal complaint to the Customer Service Unit in accordance with the UK BA Complaints Handling System.

(vii) Complaints are ad hoc and offer post hoc redress to individual complainants when and if their complaints are substantiated. Post hoc address is not adequate where safeguarding is concerned. A system of actively monitoring UK BA staff compliance by responsive and trained line managers, overseen by independent scrutiny, is an essential supplement to complaints.

Finally, we note the following consultation question relating to the chief inspector of the UK BA and monitoring of detention: Pro Forma Question 13:

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The Code indicates that the appointed Chief Inspector of the Border and Immigration Agency will look at the Border and Immigration Agency’s performance in relation to children (section 3.8.4), and proposes particular areas that might be inspected. Tick boxes answer – Yes Although we would agree that detention and these factors are appropriate matters for the chief inspector to address, we also agree with the position that was expressly stated during the passage of the UK Borders Bill that the chief inspector’s role should not replace the role other inspectorates such as Her Majesty’s Chief Inspector of Prisons. At that time the Minister stated clearly that:

“There are, however, a number of fields of operation which we propose to exclude from the work of the inspectorate simply because we already have effective, well established arrangements in place… In particular I mean detention, where we propose to preserve the role of Her Majesty’s chief inspector of prisons, where we intend to preserve the role of the prison and probation ombudsman and where we intend to preserve the role of independent monitoring boards.”33

Nor would we wish to see any interference with the role of the Children’s Commissioner in relation to detention. As regards factors that might be considered, the numbers and circumstances of age-disputed cases in detention would be an appropriate addition to the listed areas. PRIVATE CONTRACTORS On the subject of private contractors, the draft Code is remarkably deficient and falls profoundly short of the statutory obligation under s.21 UK Borders Act 2007 which it is intended to meet. The original amendment introducing s.21 did not apply to private contractors. In response to amendments tabled by the opposition, the government amended s.21 expressly to include that private contractors would be subject to the Code. As the Minister stated in the House of Commons when that Chamber was considering amendments that had been made in the House of Lords:

“…the code must apply to BIA contractors—a point put to me forcefully by children’s charities. I am happy to accept that principle, which is important because the BIA works with contractors to provide both detention and escorting facilities. I can be clearer than my noble

33

Hansard HC Public Bill Committee 20 March 2007 Col 457

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Friend, Lord Bassam: the code will apply to BIA contractors currently on the books and it will apply to BIA contractors in the future.”34

Indeed, s21(2)(b) UK Borders Act 2007 expressly provides that the UK BA shall:

“take appropriate steps to ensure that persons with whom it makes arrangements for the provision of services have regard to the code.”

The draft Code apparently reflects this at paragraph 3.1.5 where it states:

“Where private or voluntary organisations are commissioned to provide services on behalf of the Border and Immigration Agency in the United Kingdom the agreement under which arrangements are made will require (or will be revised to require) that the organisation have regard to the Code in the provision of those services.”

However, the impression there given is an illusion since the draft Code, wherever it is addressing specific obligations or responsibilities, addresses these specifically to the UK BA. There is virtually nothing of substance a conscientious private contractor could have regard to within the draft Code in connection with the contractor’s own operations. Moreover, if the substance of obligations and responsibilities in connection with the Code is intended to be set out in the operational instructions to which paragraph 3.1.13 refers, then the intention of Parliament will be subverted since those instructions will not apply to the private contractors which Parliament had specifically envisaged would be captured within the aims of s. 21 UK Borders Act 2007. This provides further reason why the s.11 Children Act 2004 duty ought to be adopted by the UK BA. That statutory duty would meet Parliament’s clear intention because the UK BA would thereby have a general statutory duty to safeguard children. The UK BA would be accountable in law, under that duty, if it allowed children for whom it was responsible to be put at risk by private contractors to whom it had effectively delegated responsibility. This approach is in marked contrast to s. 21 UK Borders Act 2007. Here the Secretary of State is required to issue a Code. The UK BA is obliged make arrangements so that private contractors have regard to that Code. However, if that Code fails to include, in any significant way or at all, private contractors within its specific reach, the statutory duty may be met but the children whom it is intended to protect are left at risk. Insofar as the Code is concerned, a radical revision is required to ensure that private contractors are meaningfully brought within its terms. In this regard we note that, with a few discrete exceptions, the general principles to which

34

Hansard HC 29 October 2007 Col 553

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we have referred in this response are equally applicable to private contractors and their staff as they apply to the UK BA. STAFF TRAINING ILPA members have reported instances of case owners in the New Asylum Model (NAM) who are not specifically trained on children’s cases making decisions on the asylum claims of separated children, because of staff shortages. ILPA members have observed that non-children-trained caseworkers are making decisions on third country cases involving unaccompanied children in the UK BA Third Country Unit – not because of staff shortages in this instance, but because of what appears to be a complete lack of awareness and acknowledgement that persons dealing with children’s cases need special training. The UK BA proposed Code of Practice relating to staff training at section 3.9 does not go far enough in ensuring that children’s cases will be dealt with by specially trained UK BA staff at all stages: interviewing, screening, reporting, decision-making, detaining, appeals etc. It does not provide that specially trained UK BA staff will deal with all categories of children’s cases: asylum, non-asylum, third country, children in families, separated children, trafficked children, adopted children etc.. The draft Code states at paragraph 3.2.1 (ii) that the UK BA will take positive steps to identify a child at risk of harm. However, what methods, procedures, or training are going to be in place to facilitate this? A response to this question, would give an indication of how far the UK BA have thought through how to effectively put the Code into practice. A further point of principle that can be identified is:

• All staff that have contact with or responsibility for children must be appropriately trained and supervised, and steps taken to ensure they achieve and maintain appropriate competence.

CONCLUDING REMARKS The draft Code is fundamentally inadequate in its current format. Quite apart from our dissatisfaction at the continuing exclusion of the UK BA from the list of agencies to whom the s. 11 Children Act 2004 duty applies and the lack of commitment to withdraw the UK’s reservation to the UN Convention on the Rights of the Child, the current draft of this Code is in our view of very little value and fundamentally fails to satisfy Parliament’s intention when enacting the UK Borders Act 2007. In summary ILPA finds that:

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• There is no evidence that the UK BA is prepared to ensure that private contractors will be covered by the Code of Practice in any meaningful way.

• The UK BA is unwilling or unable to produce a Code of Practice by which it, its staff and its private contractors can be held properly to account for their behaviour towards or actions affecting children.

• The draft Code is designed to minimise legal challenges or any other attempt to scrutinise or hold to account the UK BA in respect of safeguarding children.

• There is a lack of willingness in the UK BA to safeguard the child through to adulthood.

• The culture which the Minister wishes to change remains; and the draft Code would embed that culture still further.

• The answer to Parliament’s and the Minister’s concern for the safety of children is, as we and so many others have maintained for so long, to withdraw the reservation to the 1989 UN Convention on the Rights of the Child and to include the UK BA within the s.11 Children Act 2004 duty.

Finally we note the following two consultation questions which have not been specifically addressed in the foregoing because we do not consider them to be appropriate for this consultation process: Pro Forma Question 7: What options are most appropriate in circumstances where a child is refused further residence in the UK? Pro Forma Question 11: When children are involved in Family court considerations should the Border and Immigration Agency simplify its approach to one of granting residence to the child (if a care order is made) providing that this does not amount to condoning an abuse of the immigration system or lead to new entitlements to reside here by the child’s relatives. We have indicated considerable disquiet with the way in which consultation questions have been put. However, these two questions are particularly unsuited for inclusion within this consultation. These envisage or appear to envisage significant changes in current law or policy. Both are presented absent vital detail – e.g. statistical data or research or specific legislative proposals relating to the questions. The first (question 7) is presented in the most crude of survey forms, which is of itself wholly unsuitable for the question that is put. However, we note in relation to voluntary departures:

i) Whether a child’s return is voluntary will depend on whether they are able to give informed consent to the return. This is no straightforward matter, as set out in the opinion of Nicholas Blake QC and Charlotte Kilroy mentioned herein. Children need

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independent guardians before the notion of voluntary departure can be applied in their cases.

ii) It is not enough for a child to be willing to leave, if child protection

concerns have not been met and child protection procedures (those that apply by law) have not been satisfied. Voluntary departure does not override this: children should have more limited freedom than adults to decide to do things that will harm them. This is a matter of UK law and it is the child protection system that can determine the safety of return, not kangaroo procedures set up with the UK BA.

As regards the latter (question 11), while we do not consider this is the appropriate place for detailed comment on a policy proposal that is insufficiently articulated in the question, we generally endorse the comments in relation to the family court and to guardianship which are set out in the response of the Refugee Children’s Consortium to this consultation. Sophie Barrett-Brown Chair, ILPA 25 April 2008