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Mr. Turner: I thank the Minister for her explanation, and I am minded to withdraw the motion, but will she first address two points? First, I interpret her explanation to mean that article 31 requires that once someone is in the UK and has made a claim for
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asylum, that claim must be assessed however hopeless it may be. That is not a good reason why they should not be prosecuted for arriving in the country without adequate documentation if they have come from France, for example. I cannot conceive that the authorities could successfully prosecute someone who had been given asylum.
The second point builds on that made by my hon. and learned Friend the Member for Harborough (Mr. Garnier), which is that people simply do not believe that the provisions of the Immigration and Asylum Act 1999, as the Minister explained them, are being operated. If they were, I would be right in saying that there were no genuine asylum seekers at Sangatte, but many of those people were allowed into this country. Such actions give entirely the wrong signals to our constituents and the people who want to hang around in the Pas de Calais until they eventually find their way into this country by Eurostar or some other means. It cannot be beyond the Government's capacity to be clear and consistent in the application of those laws.
Beverley Hughes: I will try to deal with those two points. First, I know that the hon. Gentleman understands that article 31 of the convention concerns a much narrower point than the assessment of asylum claims. It states:
''The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees . . . coming directly from a territory where their life or freedom was threatened''.
We have already debated this issue. The hon. Gentleman wants to tighten the definition of ''directly'', but the current definition is adequate. That narrow point is not relevant to the assessment of the asylum claim.
Secondly, the hon. Gentleman talked about offences. There are several offences on our statute books to which the defence provided for under article 31 could apply. I do not have details of all the cases, but I think I included some figures in the tables at the back of the letter to the two Chairmen of the Committee. For example, that defence could be used in all of the following offences: seeking leave to enter or remain; avoidance or postponement; and deception. In 2002, there were proceedings against 241 people, 173 of whom were convicted. Presumably, either some of those people had an effective defence or there was not sufficient evidence. There are similar figures in the table for other offences to which that defence would apply. Clearly, the provisions are being used and people are being charged with offences, but the article 31 defence may have come into play in some of those cases.
If the hon. Gentleman means that we need to publicise more broadly the fact that we operate our laws effectively, I will accept that point and see what more we can do. The figures show that we are not being dilatory in prosecuting people when we can. However, I take his point that it may be an additional deterrent to tell people that. I think that that is his main point. I ask him to withdraw the motion.
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Mr. Turner: I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
New Clause 8
Detention by Secretary of State
'(1) Section 62 of the Immigration, Nationality and Asylum Act 2002 (c.41) (detention by the Secretary of State) shall be amended as follows.
(2) In subsection (1) insert the words ''over the age of eighteen'' after the word ''person'' in the first line.
(3) After subsection (3) insert—
''(3A) A provision of Schedule 2 to that Act about a person who is detained or liable to detention under that Schedule shall only apply to a person over the age of eighteen.
(3B) Nothing in Schedule 2 to that Act or in this section shall permit the detention of a person if the result of that detention would be the detention of a person under the age of eighteen.''.'.—[Mr. Gerrard.]
Brought up, and read the First time.
10.15 am
Mr. Neil Gerrard (Walthamstow) (Lab): I beg to move, That the clause be read a Second time.
The Chairman: With this it will be convenient to discuss the following:New clause 13—Detention of under-18s—
'In section 62 of the Nationality, Immigration and Asylum Act 2002 after subsection (3), insert—
''(3A) Nothing in this section, or in Schedule 2 to the Immigration Act 1971 (c.77) shall permit—
(a) the detention of a person under the age of 18 for more than 7 days, or, in exceptional circumstances, 10 days, or
(b) the detention of a person if the result of that detention would be the detention of a person under the age of eighteen for a period of more than 7 days, or, in exceptional circumstances, 10 days.''.'.
Mr. Gerrard: New clause 8, which stands in my name and that of the hon. Member for Perth (Annabelle Ewing), and new clause 13, which stands in the name of the hon. Member for Winchester, address the question of the detention of children. There are some differences between the two clauses. I shall address my remarks mainly to new clause 8, but the main difference is whether detention should be banned completely or whether there should be time limits. Common to both of the new clauses is the issue of how and when children should or should not be detained.
Much concern has been expressed about the detention of children. Her Majesty's inspector of prisons reported on conditions in immigration detention centres and raised some significant concerns about the detention of children in those centres. In response to that, the Government made some announcements in December, to which I will return later.
I hope we all agree that detention facilities would never be the best environment for children. No one would want to see children in detention facilities. Detention facilities would have a negative impact on children; I suspect we all agree with that. However, disagreements arise over whether there are
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circumstances in which it would be reasonable and in which there would be no option other than to hold children in detention.
When children are detained, they are usually detained with one or sometimes both their parents. It is quite difficult to know the exact numbers or the lengths of time involved. Unfortunately, whenever one gets statistics on the detention of children—or on detention in general, although this is particularly the case when it comes to children—it is only possible to get snapshots and statistics that say how many children were in detention on a particular day. A figure of 81 children in detention was given in November last year; different figures are quoted at different times. It is extremely difficult to get any sort of reliable information about how long children are detained. We have all seen anecdotal evidence about individual cases, which sometimes involve quite long periods of detention. It is difficult to track what happens.
For some time, it was official policy that families would not be detained for more than a few days and that that detention would be specifically in the period before removal. However, the 2002 White Paper said that families could be detained for longer periods if necessary. In 1999, there was the possibility of an automatic bail hearing, which would have applied to families with children. It was never put into practice and was removed from the law by the 2002 Act.
The United Nations High Commissioner for Refugees clearly states that refugee children should not be detained. That is the view of many of the groups that work with asylum seekers and refugees.
Mr. Harris: We need to be clear about the category of people we are discussing. Does my hon. Friend agree that, certainly so far as the Dungavel detention centre in Scotland in concerned, it is neither asylum seekers nor refugees who are kept there, but those whose applications have failed and whose legal status is therefore that of illegal immigrants and not refugees?
Mr. Gerrard: I am not familiar with every case at Dungavel. I certainly know that in some of the other facilities, such as Oakington, families have been detained who have not had their asylum claims considered and decided. Therefore, I do not think it is possible to argue that what my hon. Friend said would be true across the detention estate.
Annabelle Ewing (Perth) (SNP): My understanding is that children of asylum seekers have been detained in Dungavel. As the Minister mentioned, one of the apparent grounds for detaining asylum-seeker families in Dungavel is if identity cannot be established.
Mr. Gerrard: I thank the hon. Lady for making that point. I am aware of families in Oakington whose cases have not been decided.
Usually, the question of the detention of the parent will be addressed first and the question of the detention of the child will follow on from that, on the presumption that it is best for them to remain with their parents. I am unsure whether parents would
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always agree that it would be best if their children were to end up in detention. The prisons inspectorate recommended that detention should be exceptional and only for very short periods, and that there should be more reliable information from immigration authorities about detention.
Some of the organisations that work with asylum-seeker families have always maintained that detention has not been the exceptional course, but that it has been used in cases where families have not absconded but have maintained contact with the immigration authorities and where people who have been detained have then been released and obtained asylum status. Therefore, they cannot only have been present at the last minute before they were removed.
In December, the Home Office announced measures designed to respond to some of the criticisms about the detention of children. One suggestion was that the express authority of Ministers would be required to maintain detention after 28 days, but that is not the same as a few days, which is what the prisons inspectorate proposed should be the limit. There is a question as to what access a detained family ought to have to legal representation so that they can challenge their detention.
I can think of very few cases where I could see a justification for detaining children. I hope everyone agrees that that should be a last resort, but I am not convinced that the evidence shows that to have been the case. There are people in detention whose asylum claims have not been considered: people with children have been detained for a long period rather than only for a few days. We ought to tighten the rules on the detention of children.
That, essentially, is the purpose of the new clauses. Children should not be in detention. It is not appropriate for a child who has not committed any offence to be held in detention because of the actions of their parents.
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