Joint Committee On Human Rights Seventeenth Report



The Regime for Accommodation Centres

34. In the White Paper Secure Borders, Safe Havens, the Government set out a plan for 'a holistic approach to the handling of asylum seekers' applications—from arrival to the removal of failed applicants, or the integration into the community of those recognized as refugees.'[26] The first two stages in the plan were—

    —  induction centres, where asylum-seekers would be given information about the asylum process and their obligations under it, and would be provided with basic health screening, an appointment for an asylum interview, a travel warrant, and assistance from NASS where necessary. Arrangements would then be made for dispersal of those who could not support themselves to accommodation centres. The stay in the induction centres would be between one and seven days. Asylum-seekers would then be given application registration cards (biometric smart cards to provide identification in the reporting and interviewing processes, and when claiming support);[27]

    —  accommodation centres, where accommodation and welfare support would be provided for those who need it, together with health care, education, the services of interpreters, legal advice, and opportunities for purposeful activities including training in English language and IT skills. The centres would provide better facilities than are usually available under current dispersal arrangements. People would not be detained in the accommodation centres, but would not receive support if they left the centre in breach of a residence requirement. In addition, they would be warned that breach of a residence requirement might prejudice their asylum claim if it damaged their credibility. Places in accommodation centres would be allocated by reference to a range of criteria including suitability and family circumstances. If an asylum seeker applied for a place, and was offered one, he or she would be expected to take up the place, and would not be offered any alternative form of support if he or she refused it.[28]

35. The Nationality, Immigration and Asylum Bill deals only with accommodation centres (although clause 59 would make it possible for the Secretary of State to impose a restriction requiring an asylum-seeker, or his or her dependants, to reside at a specified location for up to 14 days if the person imposing the restriction believed that an induction programme would be made available at or near the location). The measures proposed in the Bill would apply to a somewhat narrower class of people than was envisaged in the White Paper. Only asylum-seekers aged 18 and over who are, or within a period to be prescribed by regulations are likely to become, destitute would be eligible for admission to the centres, together with their dependants.[29] The Secretary of State would be able to require such a person to reside at an accommodation centre as a condition of temporary admission to the United Kingdom.[30] An asylum-seeker and any dependants would be destitute for this purpose if they did not have and could not obtain food, other essential items, and adequate accommodation.[31] The Secretary of State would have power to arrange for a wide range of facilities and services to be made available at accommodation centres.[32] Under ECHR Article 3, the State has positive obligations to protect people against being subjected to treatment which is degrading; we consider these below. The United Kingdom also has an obligation to secure adequate accommodation for people who are unable to provide it for themselves, under ICESC Article 11(1). The emphasis in the Bill on the adequacy of accommodation, rather than its availability,[33] appears to be in accordance with the requirements of Article 11(1) of the ICESC, to which the Committee drew attention in its First Report.[34] The Government intends to introduce this system on a trial basis in the first instance.

36. We have considered various ways in which these plans might engage human rights. This section of the Report examines the impact on the right of asylum-seekers to liberty, the availability of legal advice, and the treatment of children, including the provision of education.

Accommodation centres and the right to liberty

37. The compatibility of the regime in the existing detention centres with the detainees' right to be free from deprivation of liberty under ECHR Article 5(1) has proved to be controversial. Under Article 5(1)(f), a person may be detained 'to prevent his effecting an unauthorised entry into the country', but it is questionable whether a person who presents himself to the authorities as soon as possible after landing and seeks asylum is trying to effect an unauthorised entry.[35] Potential incompatibilities may arise in 'induction centres' when they are established.

38. However, once an asylum seeker reaches one of the accommodation centres proposed in Part 2 of the Bill, this is unlikely to be a problem. The Government considers that the provisions relating to accommodation centres would not engage the right to liberty under Article 5(1) of the ECHR. If the conditions in accommodation centres are as foreshadowed in the White Paper, there can be little doubt that the Government is correct. Asylum-seekers—

    'will be able to come and go, and will receive a small cash allowance for incidental expenses. They will also be entitled to receive visitors....

    Residents will be subject to a residence requirement. This means that they will be required to reside at the allotted centre throughout the processing of their application and will be required to report regularly to confirm that they are complying with this requirement.'[36]

39. Under the Bill, the freedom to come and go could be curtailed by a condition imposed under regulations made by the Secretary of State. These could require a person not to be absent from the centre during specified hours without the permission of the manager of the centre or the Secretary of State.[37] Breach of a condition by the asylum-seeker or a dependant could lead to the asylum-seeker and any dependant being required to leave the centre.[38] After careful consideration, we have come to the conclusion that this regime would not in itself amount to a deprivation of liberty such as would engage rights under ECHR Article 5(1) or other international human rights treaties, as long as the restrictions were not so strict and far-reaching as effectively to deprive residents of their liberty.

Accommodation centres-legal advice

40. If people's human rights are to be made real and effective, rather than merely theoretical and illusory, it is essential to provide them with information about their rights, and with independent, accessible, free or affordable legal advice from experts in the field. Provision of information about people's legal position, and proper legal advice, are all the more important in view of the proposal in clause 53(6) to repeal statutory provision for automatic, routine bail hearings under the (never implemented) Part III of the Immigration and Asylum Act 1999. Yet clause 26 of the Bill does not expressly permit, much less require, the Secretary of State to ensure that people in accommodation centres receive appropriate information and advice. We therefore asked the Secretary of State for information about—

41. In its response, the Department declared its commitment to providing access to 'free, independent, quality legal advice to residents of accommodation centres', and continued—

The Department would itself be empowered by clause 97 of the Bill to grant funds to bodies such as the Refugee Legal Centre, the Immigration Advisory Service and the Northern Ireland Law Centre (which already receive funds to advise immigration applicants under the Immigration and Asylum Act 1999) to enable them to provide advice in relation to appeals under Part 5 of the Bill. However, the Department envisages that most applicants would use legal advice provided either in the accommodation centre, or in the locality, by the Legal Services Commission. The Department undertakes to provide facilities within accommodation centres for use by solicitors and advice agencies.[40]

42. We welcome these good intentions, but are consider that they do not go far enough. We draw attention to two factors which would need to be addressed in order to maintain the effectiveness of safeguards for the rights of residents in accommodation centres.

43. The Department's response does not indicate how the residents of the asylum centre would be made aware of their rights under national and international law. The effectiveness of legal advice as a safeguard for human rights depends on the person knowing about the rights. This is expressly recognized in relation to children by Article 42 of the Convention on the Rights of the Child (CRC)—

    States Parties undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike.

There is evidence that the provision of information and education about these matters is inadequate even in the normal school curriculum and in society more widely.[41] We consider that specially active steps need to be taken to ensure that children in accommodation centres and their parents, carers or guardians are actively informed of their rights and of the means of protecting them, including the availability of legal advice. Furthermore, it seems to us that Article 42 of the CRC states a principle of general application. Human rights are not adequately protected unless people know that they have them. The State has a responsibility to encourage understanding of them. That responsibility is heaviest in relation to people who are particularly likely to be unaware of their rights, vulnerable in the light of difficult circumstances, and to a significant extent under the control of the State. We would expect the Department to be able to inform each House of the steps which would be taken, in all accommodation centres, actively to discharge the responsibility to inform people of their rights and of the accessibility of appropriate legal advice.

44. The Department acknowledges that the balance between on-site provision and local supply of legal advice would depend on the location of each accommodation centre.[42] If accommodation centres were to be located at a distance from main centres of population, as we understand is envisaged for a significant number of them, it would make it less likely that appropriately expert legal advice could be provided through local supply. Solicitors and advice agencies would also face logistical difficulties in attending at the centres to offer advice. This could easily lead to delays in receiving the advice which people need. As one of the Government's purposes in proposing the system of accommodation centres is to speed up the processing of asylum applications,[43] there may be a risk either that this objective would be frustrated by delays in giving residents access to legal advice, or that the speedier processing of the application would frustrate the Government's commitment to ensuring that residents have access to appropriate legal advice. The enjoyment of due process rights depends on effective access to appropriate legal advice. We draw these concerns to the attention of each House.

Children in accommodation centres

45. Children are entitled to special protection under international law. Article 3(1) of the CRC requires authorities to make the best interests of the child a primary consideration in all actions concerning children. Article 9(1) requires States to ensure that children are not separated from their parents, except where that would be in the best interests of the child. Article 10(1) accordingly provides that applications by a child or his or her parents to enter or leave a State Party for the purposes of family reunifications are to be dealt with in a 'positive, humane and expeditious manner'. Article 10(2) requires States to 'respect the right of the child and his or her parents...to enter their own country'. In addition to rights under the CRC, the United Kingdom has obligations under ECHR Article 8 to respect the private and family life of asylum-seekers and their children. To some extent, these obligations overlap with the ground covered by the provisions of the CRC. We bear in mind the fact that the European Court of Human Rights has, on occasions, interpreted the obligations on states in respect of family life under ECHR Article 8 in the light of the obligations arising under the CRC.

46. On ratifying the CRC, the United Kingdom reserved its freedom to continue to apply such immigration legislation governing entry into, stay in and departure from the United Kingdom as may be deemed necessary from time to time. As noted in paragraph 17, above, the validity of the reservation, made under Article 51, is not free from doubt. Save the Children provided us with a copy of Counsel's Opinion to the effect that the reservation was likely to be unlawful, since it was expressed in unnecessarily broad terms which are incompatible with the object and purposes of the CRC, and inevitably discriminated against children on the ground of the status they are seeking (and, we would add, the national origin of the child or his or her parent or legal guardian) contrary to Article 2. Such a reservation, it was argued, would be 'incompatible with the object and purpose of the present Convention', which (as the Preamble to the CRC makes clear) is to secure the special care and assistance to which children are entitled without discrimination, and so would be disallowed under Article 51(2).[44] We therefore asked the Secretary of State whether the Government intended to maintain its reservation, and whether it was satisfied that it was valid.

47. The Department replied that the reservation is necessary to preserve the integrity of the immigration laws, by making it clear 'that nothing in the CRC is to be interpreted as creating further legal obligations in respect of those subject to immigration control or to allow entry to be gained to the United Kingdom simply in order to make use of rights under the CRC.'[45] The Department considers that the reservation would apply to children in accommodation centres, and suggests that there is a need to ensure greater contact between the Home Office and asylum-seekers and their dependants to speed up decision-making and facilitate swift integration of those allowed to remain, and removal of those who do not establish a right to remain.[46]

48. We doubt that a reservation as wide as that which the United Kingdom maintains is necessary for those purposes, or that it is compatible with the object and purpose of the CRC. We draw attention to the fact that the obligations of each State Party to the CRC under international law are owed to everyone below the age of 18 who is within the jurisdiction of the State.[47]

49. It is not clear what the Department means by the phrase 'further legal obligations in respect of those subject to immigration control'. If it implies that it is open to the State unilaterally to exclude obligations arising under international law towards a class of children defined by reference to a right of abode, we are not convinced that that position is open to the State. It would treat children subject to immigration control less favourably than other children in ensuring the rights set forth in the CRC. The class of children subject to immigration control is defined by a number of factors, among which the child's parent's or guardian's national origin and birth (in relation to which discrimination is prohibited by CRC Article 2(2)) are very significant. Being subject to immigration control may also amount to 'other status' within the meaning of CRC Article 2(2). Although the Department does not accept that the category of 'asylum-seeker' is a 'status' for the purpose of Article 2(2),[48] it seems quite possible that being 'subject to immigration control' carries sufficiently extensive legal liabilities, duties and disabilities to justify treating it as a form of legal status.

50. For these reasons, we consider that children who are subject to immigration control should be regarded as being entitled to enjoy all their rights under the CRC, and that the State has an obligation to secure their rights insofar as that can be done without necessarily granting a right to enter or remain in the United Kingdom. We are satisfied that the United Kingdom's reservation, even assuming it to be valid (which we doubt), should not be interpreted as further limiting the United Kingdom's obligations under the CRC towards children who are subject to immigration control. We draw this to the attention of each House.

51. In view of our concerns about the United Kingdom's reservation to the CRC, we asked the Secretary of State whether he considered that, but for the reservation, the provisions of Part 2 of the Bill (accommodation centres) would be likely to violate rights arising under the CRC. The Department replied that it would be open to it to have regard to the rights set out in the CRC even where the circumstances were within the terms of the reservation,[49] and undertook to 'take the best interests of the child into account in relation to accommodation centres'.[50] We draw attention to the fact that the duty of the State Party under CRC Article 3(1) is to make the best interests of the child a primary consideration in all actions concerning children. Merely taking their best interests into account would not meet the obligation under Article 3(1). In relation to other rights, we welcome the Department's assurance that, in accordance with CRC Article 9(1), children would not be separated from their parents unless it were in the child's best interests, for example for child protection reasons; where it became necessary to separate them, the child would be cared for by the local authority. We also welcome the assurance that unaccompanied asylum-seeking children would never be placed in accommodation centres.[51]

52. The Refugee Children's Consortium[52] expressed the view that allowing children to be accommodated at accommodation centres could breach several provisions of the CRC. We formed the initial view that the extent of any threat to rights would depend on the regime and facilities in each accommodation centre. We hoped and expected that families would be accommodated at centres with facilities suitable for the needs of the children,[53] and were glad to be assured by the Department that families would be accommodated in centres with suitable facilities for them, taking account of the needs of particular children.[54] To clarify the position further, we asked the Secretary of State how decisions about the imposition of residence requirements and the allocation of asylum-seekers to particular centres take would account of the rights of children under the CRC. We asked specifically about a number of obligations and rights. The Home Office replied that—

    (a) it would take into account the best interests of the children. Although we reiterate that CRC Article 3(1) requires that, in all actions concerning children, the best interests of the children should be a primary consideration, we are reassured by the Department's undertaking that children would be accommodated with their families unless it was not in their best interests to do so, and that they would be placed in centres with facilities suitable to their needs.[55] The Department also suggested that it could address issues of relevance to children by way of regular discussion with bodies having regular contact with asylum-seekers, such as the Refugee Council. We are not convinced by this. In our view, there is a need to ensure that children can participate directly in decision-making about arrangements affecting them, a right guaranteed to all children by CRC Article 12. We recommend that appropriate arrangements should be put in place to consult directly children about matters affecting them, as required by Article 12. We return to this point below;

    (b) communal life would not significantly affect the right to respect for private and family life (ECHR Article 8) and the right to privacy and a family life (CRC Articles 16 and 18), because families would be accommodated separately from single adults, and any slight impact would be expected to be justifiable under ECHR Article 8(2) as being in accordance with the law and necessary in the interests of the economic well-being of the United Kingdom, an effective system of immigration control being a means to that end. Furthermore, the Department considers that, by accommodating children with their parents in suitable accommodation and making provision for their well-being and support, it would be respecting rights under CRC Article 18.[56] We accept that this is a tenable view, as long as families will be accommodated separately from each other, as well as separately from single adults;

    (c) the Department intends to give effect to the right to participate in social, leisure, recreational and cultural activities available to other children (CRC Article 31) by ensuring that facilities for recreation, including sports facilities, and education and religious observance are provided at accommodation centres.[57] We accept that this should suffice, as long as access to them is not subject to conditions which effectively deprive people of the essence of the right;

    (d) in respect of the right to freedom of association (CRC Article 15), which includes making cultural links and participating in normal community life,[58] the Department intends that links should be developed between accommodation centres and local communities to further an understanding of the centres. This seems to us to be a way of defusing resistance to the presence of accommodation centres and their residents in the locality, but not a satisfactory means of allowing children in the centres to make cultural links and participate in normal community life. The Department also wants to administer centres in such a way that viable communities can develop in them. A limited number of languages would be spoken in each centre, and facilities and services would be available.[59] However, in our view it would be a matter of real concern if life in an accommodation centre for destitute asylum-seekers and their dependants were to be regarded as an example of that 'normal community life' with which children are entitled to make cultural links and in which they are entitled to participate. We accept that the Department intends to make efforts to make life in the centres as pleasant as possible, but such a life would be inherently abnormal by most people's standards. It would also be likely to be somewhat cut off from local communities. The proposal to educate most children inside the accommodation centres rather than in local schools (about which we say more below) would deprive the children of an important opportunity to forge links with the local community, and could delay the process of integrating into the community those who are successful in establishing a right to remain. Making links is likely to be particularly difficult if accommodation centres are located in isolated areas, as seems to be quite possible in many cases. We are concerned that this will make it difficult to meet the requirements of children's rights under CRC Article 15, and we accordingly draw it to the attention of each House;

    (e) under CRC Article 12, children are entitled to express their views in all matters affecting them, and the State has a concomitant duty to ensure that their views are given due weight in accordance with their age and maturity (CRC Article 12). The Department says that it is 'considering how best the views of residents of accommodation centres, including children, can be made available to the manager of each centre and to the Secretary of State'.[60] The Department appears to envisage the children's parents acting as the main channel of children's views, at least in relation to applications for support.[61] This is hardly a satisfactory way of ensuring that all children who are capable of forming their own views can express them freely in all matters affecting them, and that those views will be given due weight in accordance with their age and maturity, as required for all children by CRC Article 12(1). Nor does it seem to ensure that the child will have the opportunity to be heard in any judicial or administrative proceedings affecting them, either directly or indirectly, as required by Article 12(2). We consider that some imaginative thinking is needed to find ways of accomplishing this. Organizations in the United Kingdom, such as Children's Rights Alliance for England and Wales, have considerable experience in facilitating processes of this kind. We recommend that the Home Office should involve such organizations closely in the planning and implementation of arrangements to guarantee compliance with rights under CRC Article 12 to children in accommodation centres, and we draw this to that attention of each House as a way of avoiding potential violations of those rights;

    (f) children, particularly those seeking refugee status, have a right under CRC Article 22 to benefit from appropriate protection for their rights under the CRC and other human rights instruments. The Department accepts that nothing in the United Kingdom's reservation (on which see above) prevents the Department from giving effect to rights under the CRC, and that the rights under the ECHR guaranteed by the Human Rights Act 1998 apply to the children of asylum seekers and undertakes to respect them.[62] But this is a very limited concession. Being capable of giving effect to rights under the CRC, and being willing to respect rights under the ECHR and Human Rights Act 1998, are only parts of the State's obligation under CRC Article 22. Alongside those negative obligations, there is a positive obligation under Article 22(1) to 'take appropriate measures to ensure that a child...shall...receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.' These obligations owed to children go significantly beyond those owed to adults. It is important to establish the steps which will be taken to allow the State to discharge its positive obligations to children under CRC Article 22. It seems to us that these require careful consideration, and we accordingly draw the matter to the attention of each House.

The right to education in accommodation centres (clauses 31 and 32)

53. Children in accommodation centres would enjoy the right to education under Article 2 of Protocol No. 1 to the ECHR, which provides—

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and teaching, the state shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

The United Kingdom has entered a reservation to the second sentence of Article 2, to allow it to ensure that any educational provision is efficient, but has entered no reservation to the first sentence. Under the CRC, Article 28 provides, inter alia

1. States Parties recognize the right of the child to education, and with a view to achieving this progressively and on the basis of equality of opportunity, they shall, in particular:

54. The relevant case-law on ECHR Protocol No. 1, Article 2 can be summarized as follows.

      (b)  The Article does not require the state itself to provide the system of education, but the first sentence of Article 2 imposes on the state an obligation to ensure that everyone has access to an effective system of education in existing educational institutions.[64]

      (c)  If the existing institutions are ineffective for the purpose, the state must provide appropriate institutions and make them available to all.[65]

      (d)  The state has a discretion as to the type of education which is provided and the way it is regulated, taking account of the needs and resources of the community and of the individuals affected, as long as the discretion is not exercised in a way that injures the substance of the right to education, making it meaningless or ineffective, or conflicts with other Convention rights.[66]

      (e)  ECHR Article 14 (the right to be free of discrimination in the enjoyment of other Convention rights) taken together with Article 2 of Protocol No. 1 requires that the right to education must be secured without discrimination on the ground (among others) of nationality or other status.

55. Responsibility for meeting the requirements of international treaties in relation to education currently lie mainly on local education authorities (LEAs). At present, they owe two linked duties under section 13 of the Education Act 1996. The first is an aspirational and progressive duty, which would hardly ever be justiciable (because its content is insufficiently specific), to contribute to the spiritual, moral, mental and physical development of the community. The second is a duty to fulfil the first obligation by securing efficient primary, secondary and further education for the population of their areas. There has in the past been doubt as to whether, for these purposes, people detained in detention centres were part of the community, and whether they formed part of the population of the area in which the centre was situated.

56. The new clauses seek to remove uncertainty by providing that residents of an accommodation centre would not be treated as part of the population of a LEA's area.[67] The LEA would therefore not owe a duty to secure efficient education for such people. Indeed, it would be prohibited from admitting a resident to one of its maintained schools and nurseries in most circumstances.[68] Instead, the Bill contemplates facilities for education and training being provided to residents in accommodation centres by the Home Secretary under a power (but not a duty) to be conferred by clause 26(1)(f). The facilities would not make the accommodation centre into a school for the purposes of the Education Act 1996, but would be subject to inspection as if they were being provided in a school.[69] In addition, the duty to assess the needs of children and young people with learning difficulties[70] would apply to accommodation centres.[71]

57. The LEA would retain responsibility for the education of children in accommodation centres who have special educational needs. Clause 31(3) would allow such a child with a statement of special educational needs to be admitted to a maintained school or maintained nursery named in the statement. However, under clause 31(7) the child would have to be educated by way of facilities provided for residents of the centre by the Home Secretary under clause 26 of the Bill, unless that is incompatible with the child receiving the special educational provision which his or her learning difficulty calls for, or with the efficient use of resources.

58. The LEA would also have power to provide education for a child, and to disapply clause 31, if a person who provides education to the residents of an accommodation centre recommends in writing that this should be done.[72] This would make it possible to provide school education for a child for whom (perhaps because of ability, subjects of study previous education or examination needs) the educational facilities in the accommodation centre could not adequately cater.

59. We were concerned about the fact that the Secretary of State would have only a power, rather than a duty, to provide education. It seemed important to clarify the circumstances in which education would be provided, and (in view of the discretionary nature of the provision) to satisfy ourselves that the accommodation would be appropriate (in terms of standards and curriculum) to the needs of students, and without discriminating between students in accommodation centres and those being educated in schools.

60. We therefore asked the Government to confirm that the powers of the Secretary of State would be exercised so as to meet the United Kingdom's obligations under ECHR Article 14 and Article 2 of Protocol No. 1, and also CRC Articles 2 (the anti-discrimination provision) and 28(1) (the right to education on the basis of equal opportunity, including compulsory, free primary education). We asked in particular whether adequate and effective educational provision would be made in every accommodation centre in which any child of school age was to reside for more than a few days, and whether the quality of educational provision and facilities would be equivalent to those available in maintained schools, despite the fact that centres would not be treated as schools for the purposes of the Education Act 1996. We also asked the Secretary of State what differences he expected there would be between the quality of educational provision made for children in accommodation centres, children of asylum-seekers in the community, and other children respectively, and how any such differences would be justified.

61. In its reply, the Department undertook to ensure that education in accommodation centres would meet the requirements of Articles 14 of, and Article 2 of Protocol No. 1 to, the ECHR, and that the education provided in all accommodation centres where children would reside would be of an equivalent quality to, and mirror the scope of, that provided in schools. Ofsted inspections, and their equivalents in Wales and Scotland, would ensure that standards would be consistent with those in schools. The National Curriculum, or its Welsh and Scottish equivalents, would be delivered, tailored where necessary to meet the needs of residents. The education would be intended to make integration into the ordinary school system easier, avoiding placing the children from accommodation centres at a disadvantage when they entered mainstream schooling. Clause 32 of the Bill would allow children whose educational needs could not be met in accommodation centres to be educated in schools run by the LEA. The success of accommodation centres in educating children residing there would be one of the criteria for evaluating the initial trial of the centres.[73]

62. We understand the disquiet which has been expressed at the prospect of removing the children of destitute asylum-seekers residing in accommodation centres from mainstream schools, and educating them separately in accommodation centres. It gives rise to troubling echoes of historical educational regimes in some other countries where children were educated separately on the basis of race or colour, under the now discredited pretence that the separate provision was equal. Separate education on the basis of ethnicity or national origin breeds and entrenches social and educational inequality, and inhibits or even deters integration. In that light, the proposals might breach equality rights, for example ECHR Article 14 taken together with Article 2 of Protocol No. 1, unless the separation can be shown to be objectively justifiable by reference to a legitimate aim to which it is proportionate and rationally related. The new clauses will be useful in providing additional clarity when identifying the bodies with responsibility for providing educational and training facilities to residents of accommodation centres, and may make it easier to ensure that the rights of school-age children and their parents under Article 2 of Protocol No. 1 to the ECHR were respected. We have already expressed our view that educating children exclusively in accommodation centres would deprive them of an important opportunity for children to exercise freedom of association under CRC Article 15, making social and cultural links, to develop understanding of and respect for the national values of the country, and to participate in cultural life, as required by CRC Articles 29(1)(c) and 31(1).[74] These matters call for careful judgment, and we draw them to the attention of each House.


26   Cm. 5387, p. 53, para. 4.20 Back

27   ibid., pp. 53-54, paras. 4.21-4.24 Back

28   ibid., pp. 55-58, paras. 4.28-4.41 Back

29   Clauses 15(1), 16(1)(a). See para. 81, below, on the position of unaccompanied asylum-seeking children Back

30   Clause 21. The power to grant temporary admission is conferred by Immigration Act 1971, Sch. 2, para. 21(2) Back

31   Clause 17 Back

32   Clause 26 Back

33   See particularly clause 17(4) Back

34   First Report of 2001-02, Homelessness Bill, HL Paper 30, HC 314, paras. 3-4 and 9 Back

35   In R.. (on the application of Saadi and others) v. Secretary of State for the Home Department [2001] EWCA Civ 1512, [2002] 1 WLR 356, Collins J. held that locking up asylum-seekers to facilitate the process of administering their claims to asylum amounted to a deprivation of liberty and was not justified by Art. 5(1)(c). The Court of Appeal reversed the decision, apparently holding (although the reasoning is not entirely clear) that it is lawful to detain a person in a detention centre while the application is considered, provided that there are suitable safeguards (including access to judicial review and to the procedure for determining refugee status) and that the detention is not excessively prolonged. With regard to the length of detention, the question is whether it is disproportionate to the purpose of detention having regard to the conditions of detention and any special circumstances affecting the individual. The Court of Appeal appeared to hold that detention of asylum-seekers which satisfied those tests did not amount to a deprivation of liberty under Article 5(1). (See paras. [61]-[66] of the Court of Appeal's judgment, [2002] 1 WLR at pp. 392-394.) The applicants have appealed to the House of Lords, which heard argument in the case on 1 and 2 May 2002, and judgment is awaited Back

36   Cm. 5387, p. 57, paras. 4.36-4.37 Back

37   Clause 27(1), (2), (3)(a) Back

38   Clause 27(4), (5) Back

39   Home Office Memorandum, para. 10, Ev 2 Back

40   ibid., paras. 11-12, Ev 2-3 Back

41   Oral evidence to the Committee by Fred Tyson Brown, Andy Butler, Diana Savickaja, Joel Semakula, Gbemi Sodimu, and James Sweeney, 10 June 2002, not yet published Back

42   Home Office Memorandum, para. 11, Ev 2 Back

43   ibid., para. 14, Ev 3 Back

44   Article 51(2) states, 'A reservation incompatible with the object and purpose of the present Convention shall not be permitted.' The Opinion by Nicholas Blake QC and Sandhya Drew is reproduced as an Annex to this Report. See particularly paras. 5-13 and 25-27 of the Opinion Back

45   Home Office Memorandum, para. 13, Ev 3 Back

46   ibid., para. 14, Ev 3 Back

47   CRC, Art. 2(1) Back

48   See, e.g., Home Office Memorandum, para. 42, Ev 7 Back

49   ibid., para. 14, Ev 3 Back

50   ibid., para. 15, Ev 3 Back

51   ibid., para. 16, Ev 3 Back

52   Refugee Children's Consortium, The Nationality, Immigration and Asylum Bill: Second Reading Briefing, Ev 42-45  Back

53   See the White Paper, Cm. 5387, p. 56, para. 4.34 Back

54   Home Office Memorandum, para. 19, Ev 4 Back

55   ibid., paras. 20-21, Ev 4 Back

56   ibid., paras. 22-24, Ev 4 Back

57   ibid., para. 25, Ev 4 Back

58   See also CRC Art. 29(1)(c) (education to be directed to the development of respect for, inter alia, the national values of the country in which the child is living), and Art. 31(1) (right to participate freely in cultural life) Back

59   Home Office Memorandum, para. 26, Ev 4 Back

60   ibid., para. 27, Ev 5 Back

61   ibidBack

62   ibid., para. 28, Ev 5 Back

63   X. v. United Kingdom, Eur. Commn. HR, (1975) 2 DR 50; 15 Foreign Students v. United Kingdom, Eur. Commn. HR, (1977) 9 DR 185;Yanasik v. Turkey, Eur. Commn. HR, (1993) 74 DR 14; Sulak v. Turkey, Eur. Commn. HR, (1996) 84-A DR 98 Back

64   Belgian Linguistic Case (No. 2) (1968) 1 EHRR 252 Back

65   Kjeldsen, Busk Madsen and Pedersen v. Denmark (1976) 1 EHRR 711 Back

66   Belgian Linguistic Case (No. 2) (1968) 1 EHRR 252; Ingrid Jordebo Foundation of Christian Schools and Ingrid Jordebo v. Sweden, Eur. Commn. HR, (1987) 51 DR 125 Back

67   Clause 31(1) Back

68   Clause 31(2) Back

69   Clause 31(9)(a) Back

70   Education Act 1996, s. 329A, and Learning and Skills Act 2000, s. 140 Back

71   Clause 31(9)(b) and (c) Back

72   Clause 32 Back

73   Home Office Memorandum, paras. 29-34, Ev 5-6 Back

74   See para. 52(c) and (d), above Back


 
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