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If the Bill were left alone and the Government do not give me the assurance that I seek, it would allow them to impose a financial penalty on a person who fails to comply with any of the provisions in the regulations in Clause 5(1) and can then remove his leave to enter or to remain. We seem to be imposing two penalties for the same offence and therefore, at the very least, the Secretary of State should have to consider the impact of the penalties imposed under Clause 7 when deciding whether to impose a financial penalty as well.

Lord Bassam of Brighton: I am grateful to the noble Lord for that further elucidation of his point. I thought I had made it fairly clear that the Home Secretary would not impose both penalties.

Lord Avebury: Good.

Lord Bassam of Brighton: It will be for the Home Secretary to decide which penalty is appropriate. The considerations with which the noble Lord takes issue can be properly dealt with and, no doubt, the Home Secretary will choose whichever is the most appropriate penalty. The point the noble Lord made—about his notional student, for instance—can be considered in the light of that. I hope that that helps.

On Question, amendment agreed to.

Clause 14 agreed to.

2.30 pm

Clause 15 [Interpretation]:

[Amendment No. 26 not moved.]

Clause 15 agreed to.

Lord Avebury moved Amendment No. 27:



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The noble Lord said: The Refugee Children’s Consortium, which speaks for 23 children’s organisations, and with which the Children’s Commissioner, UNICEF, the UNHCR and the British Red Cross have observer status, endorsed the demand by the UN Committee on the Rights of the Child that the UK withdraw its general reservation on immigration and citizenship. In Amendment No. 27, we invite the Committee to take a step in that direction by bringing the BIA within the scope of the convention, while explicitly preserving the right of the Secretary of State to deport a child under the immigration Acts. This saving is not necessary legally, in our opinion, because Article 22 of the CRC provides that states must,

an asylum-seeking child,

If there were any doubt about whether a failed asylum seeker who was a child could be deported, and there had been no case before the Committee on the Rights of the Child, the Government could have sought clarification from the committee. But I am sure that states parties which are already parties to the convention routinely remove children, and do it as humanely as possible as none of them has been in trouble for any breach of the convention. I am open to correction by the Minister. I am equally sure that if the only concern were about removals, the Government would have been able to draft a much more limited reservation than the one we have to observe at present.

As we heard at our first sitting, the Government are desperate to avoid any commitment to the welfare of the child by the BIA, whereas we believe that in accordance with Article 3 of the CRC, the best interests of the child should be the primary consideration. We are particularly concerned with current procedures in connection with immigration control that are clearly breaches of the convention. I shall give a couple of examples with which the noble Lord may be familiar.

The first concerns the separation of breastfeeding mothers from their infants, on which I have corresponded with three Home Office Ministers—Mr Tony McNulty, Mr Liam Byrne, and the noble and learned Baroness, Lady Scotland. After the first case of Mrs N, Mr McNulty instructed senior officials to conduct a review in April 2006. On 18 May last year, the noble and learned Baroness, Lady Scotland, told me that the review had been completed and amendments were being made to the operational enforcement manual. I have not been able to identify those changes, and I would be grateful if the Minister would let me know what they were.



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Mr Byrne wrote to me on 12 July 2006, saying that correct procedures had not been followed and that all staff had been reminded that families should be separated only on the authority of an assistant director, a procedure that is not a judicial review and therefore not compliant with Article 9 of the convention.

A month later, I wrote to Mr Byrne about a second case, that of Mrs P, who had been detained when she went on a routine signing-on in April 2006 and separated from her breastfeeding infant for two days. The review which had been conducted on the case of Mrs N had not looked at whether there were any similar cases at that time, although I had asked for that to be done, and we still do not know whether there were any.

On 27 August last year, I wrote to Mr Byrne, reminding him that I was awaiting a reply to my letter of 12 July. He replied on 12 September saying that the IND had no record that Mrs P had told the immigration staff that she was lactating. That was plainly untrue. Not only had Mrs P told the officer repeatedly that she was breastfeeding her little boy, but it became obvious because her breasts were leaking—a fact remarked on by other officers.

I wrote again with details of the events that had taken place at Communications House. In his reply of 23 October, the Minister finally admitted that Mrs P had told the officers that she was “feeding baby”, but the interviewing officer said that he had not understood that she meant breastfeeding. The Minister also admitted that Communications House denied her the facility of making a telephone call to the carer of her baby, who thought that Mrs P would be gone for a couple of hours and was no doubt getting desperate. Mr Byrne said that the official concerned had been retrained, and that specific guidance was being developed in relation to breastfeeding mothers and parents of young children, including a requirement that breastfeeding infants should not be separated from their mothers unless compelling and exceptional circumstances indicated that it might be appropriate. He said that the same would apply to any young children. I was unable to find that guidance on the Home Office website, and would be grateful if the noble Lord would give the reference, for the satisfaction of the Committee this afternoon.

In spite of the assurances that I had been given in both those cases, a third case has arisen—as the Minister is aware, I hope—that of Mrs Janipher Maseko, whose name I can mention because the case is already in the public domain. She was said to have come to the end of her asylum application after she had just been delivered of her son, Collin, in Hillingdon Hospital. She lost her accommodation and the support that she had been receiving, and was taken into custody by the police when she was found sleeping rough on 9 May. At the time, Collin was two weeks old and his sister Chantelle was one year old. They were placed in foster care while Janipher, after spending four days in police custody without a shower, was taken to Yarl’s Wood immigration removal centre. The two babies were not restored to

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her until 23 May, and that took the combined efforts of two MPs and a Peer, the professor of midwifery at King’s, Cristel Amiss of the Black Women’s Rape Action Project, Helen Butler of the La Leche League, Patti Rundall of Baby Milk Action, and the redoubtable Morgan Gallagher of Nursing Matters.

The Minister has now instructed the children’s champion for the BIA to investigate the circumstances and make recommendations, but how can we have any confidence in the process when investigations into the previous two cases failed to prevent a recurrence?

I hope that Members of the Committee will forgive me for going into some detail on this problem but I hope that it will convince them that, if this sort of thing can happen, there is an urgent need to bring the BIA within the scope of the CRC. The convention provides a critical standard against which the UK’s treatment of refugee children must be assessed, and should be used by the Government as their guiding principle on all matters relating to refugee and asylum-seeking children.

In October 2002, the committee said that the Government should,

The Government have stated that the reservation does not prevent them having regard to the convention in the care and protection of child asylum seekers. We challenge that assertion, on the basis of our knowledge of cases such as those mentioned, and because the reservation allows the UK to pass immigration laws without reference to the convention. It allows the UK to detain children in places such as Yarl’s Wood, contrary to the advice of the JCHR and in the face of repeated criticism by the Chief Inspector of Prisons, Anne Owers.

A new handbook by Bail for Immigration Detainees—no doubt we can go into it in greater detail on the amendment tabled by the noble Lord, Lord Judd, and others—concludes that,

The honourable Member for Hendon, chair of the JCHR, goes further in his press release accompanying the committee’s report on asylum seekers. He says that asylum-seeking children should never be detained, and that the treatment of asylum seekers in some cases, particularly the policy of enforced destitution—we will discuss that later—reaches the human rights threshold of inhuman and degrading treatment.

These situations will continue to arise as long as there is no underlying principle governing the treatment of asylum-seeking children. Now that we have a new Government, it is time for a fresh start. There could be no better indication of a radical change in the child-hostile asylum policies of the past than for the Minister to say this afternoon that the Government will consider withdrawing their reservation on the CRC, as the UN Committee on the Rights of the Child has urged. I beg to move.



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Lord Roberts of Llandudno: I support everything said by my noble friend Lord Avebury. Any nation is judged by the way that it treats the most vulnerable in its midst. Given the examples that we heard today and previously, which are well known to organisations such as the Refugee Council, we would be looked upon with a wee bit of shame by generations to come, considering that the most vulnerable in our midst were those treated most harshly.

In a Written Answer I received from the noble Lord, Lord Bassam, he stated:

Is it not time not to retain this reservation, but to take a lead in abolishing it, and to say that children come first in the conflict between immigration legislation and children’s rights? You can argue in government about different legislation—you can have a million words—but one child suffering is a shame upon us as a nation. As I have done on many occasions, I urge the Government to go ahead and withdraw that reservation. I am glad that Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 has largely been put on hold. We will come to that. It might show that the Government see a glimmer of light and be a wee response to our pleading. I wholeheartedly support the amendment.

The Earl of Sandwich: I speak as the patron of the Haslar Visitors Group, because I have just been told a story about the treatment of young children pending removal, which I hope that the Committee will find relevant.

On 22 March, a woman from Kosovo and her three children under seven, including a new-born baby, were dawn-raided at their home in Portsmouth while her partner was in London. The children had to witness their parents’ possessions being rifled through in a search for documents. They were not given time to eat breakfast, but were taken to Yarl’s Wood and informed that they would be on a flight back to Kosovo on the following Thursday. On the Wednesday before that, the baby started vomiting and seemed seriously ill, so the whole family was rushed to hospital. They spent the day there, but in the early evening the older children were returned to Yarl’s Wood alone, against their mother’s wishes. The children were terrified and screaming, but had to spend the night in Yarl’s Wood while their mother remained in hospital with the sick baby. The following evening, the mother was taken back to Yarl’s Wood, while the baby stayed in hospital. In other words, she was reunited with her older children, but separated from her sick baby.

On 30 March, the mother was taken back to the hospital to see the baby and said that the nappies had not been changed since she had left the previous day. The baby was discharged later on the same day and, by the evening, they were all together in Yarl’s Wood. Despite the age of the children, they were all held

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there for two months. They were then returned to Portsmouth and reunited with their father, who had been too afraid of arrest to visit them.

This story may illustrate the range of problems with which the authorities are faced in meeting the best interests of the child during the process of removal—it is no easy matter. It also shows the Home Office’s desperation to achieve its targets, and the lack of consideration for family life which characterises some aspects of government policy. I know that later we shall come to amendments in the name of my noble friend Lord Listowel and others which relate specifically to removals but, as the noble Lord, Lord Avebury, asked, with these sorts of stories, how can we have any confidence in the process?

2.45 pm

Lord Hylton: It seems that horror stories about Yarl’s Wood never end. I have personal knowledge of the third case mentioned by the noble Lord, Lord Avebury, and, on those grounds and generally, I am very happy to support the amendment. I am surprised that the Official Opposition do not appear to support or even comment on it.

Baroness Anelay of St Johns: We should recall that, when dealing with amendments, it is the custom of this House for the Member representing Her Majesty’s loyal Opposition to speak last, just before the Minister, so that they are able to give the courtesy of their consideration to all that has been said. I always listen with great respect to the noble Lord, Lord Hylton.

Lord Hylton: I take that point on board and perhaps I should withdraw what I said, although it does not deter me from supporting the amendment.

Baroness Anelay of St Johns: I am sure that nothing would. The noble Lord, Lord Hylton, has shown great principle and courage over all the years that I have been here, and I know that he has served the House much longer than I have.

It is right that the noble Lord, Lord Avebury, directs us again to the issue of child welfare and how it should be promoted. We have revisited many of the arguments that were dealt with at the end of day one of Committee, when we looked at Amendment No. 13. The conundrum that has to be resolved is: how does one adequately protect and promote the welfare of children who are affected by the immigration system, while the Government, as their prime duty, protect the people of this country, many of whom are children and to whom the Government also owe that duty of protection and welfare?

We have heard some harrowing stories and obviously the Minister will address the particular of those but, looking to the general, I am grateful for the briefing from the Refugee Children’s Consortium. As the noble Lord, Lord Avebury, said, that organisation is concerned that the Government have stated that they do not intend to sign up to the UNCRC in respect of the terms of the amendment. The

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Government said that they believe that their general reservation on immigration and citizenship does not prevent them having regard to the UNCRC in their care and protection of separated children. I appreciate that the Minister gave much of his answer on the first day in Committee, but we need to hear from him again why the Government believe that that is the case. Of course, we have been given the code of practice, Keeping Children Safe from Harm, from the Border and Immigration Agency, and that has been helpful. We considered the code and need to test how far it goes in meeting our concerns. As the noble Lord, Lord Avebury, and others have said, we will return to this issue. There are other matters covering the welfare of children, particularly those in detention with or without a responsible adult.

The argument of the Refugee Children’s Consortium is that the reservation entered into by the Government means that, in practice, the Government are not able adequately to protect children. It alleges that it allows the UK to pass immigration laws without reference to the convention. For example, it alleges that some of the proposals in the Bill would be in contravention of the convention. Therefore, we need to hear from the Minister why the course that the Government intend to adopt and develop in response to amendments that we have already debated enables them to maintain their reservation without compromising the safety and welfare of children in the system. If the Minister is not able to do that, by the time we get to Report I feel that a head of steam will be building up and that noble Lords will want to try to ensure somehow that there is a core protection.

At the moment, the core protection is that encapsulated in Section 11. If the Section 11 proposals could be embodied in the Bill in some strong, guaranteed way, many if not all of the other amendments would not be necessary. I am not wholeheartedly saying that I support this amendment, because there are other ways in which we can address the problem. It was absolutely right for the noble Lord, Lord Avebury, to bring it forward because the Minister needs to be able to enter his justification.

Lord Bassam of Brighton: This observation is felt as well as meant: I could not be other than moved by the cases referred to by the noble Lord, Lord Avebury, and the noble Earl, Lord Sandwich. Clearly, that is not best practice and it is not what we want to hear. I cannot comment on individual cases because it would be wrong of me to do so, but the Committee will record its gratitude to the noble Lord, Lord Avebury, for being as assiduous as he is in pursuing us in government with those issues and drawing our attention to what he and others quite rightly view as malpractice. I congratulate him on doing that and it is right.

One feels extremely uncomfortable listening to disturbing stories of that nature. Whatever the justification, they make one feel very uncomfortable indeed. The noble Earl, Lord Sandwich, made the point that officials find themselves in difficult circumstances when dealing with families who have different family needs—children of different ages

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requiring different things, where someone has become hospitalised or is in poor health, or where both parents are absent for whatever reason. Clearly, those are distressing circumstances and not easy for anyone to resolve. However, overarching all that must be the consideration that we must look after the best interests of the children concerned—that whatever the outcome of each individual case, their welfare and care must be of primary importance.

We come to the amendment and its effect and the issues that were so neatly drawn together in her concluding comments by the noble Baroness, Lady Anelay, who quite properly draws out the issues relating to core protection. Numerous bodies are charged with the care, protection and welfare of children in this country. Local authorities, education and healthcare professionals are among them. All these are bound under domestic legislation to provide the same standard of care to all children, irrespective of their immigration status. We are satisfied that children subject to immigration control and present in the United Kingdom receive comprehensive care, protection and support in the main. That is not to say that improvements cannot be made or that occasionally there are circumstances when those standards are not met in the spirit of domestic legislation.

The amendment would require every decision to grant, refuse or vary leave involving a child to be made so that it is compatible with the United Nations Convention on the Rights of the Child, with a view to that child’s best interests. However, this wording is too vague; it is not clear how it would be interpreted, and it is quite likely that because of this vagueness it will be used as another avenue to remain in the United Kingdom by those who have no right to stay.

The Secretary of State is entitled to query the purpose of the amendment. We have already established that it cannot be so that children who are subject to immigration control receive the same care, protection and welfare as other children in the UK. Our domestic legislation provides for that. The amendment can only be designed to prevent the carrying out of immigration functions, yet that is the very reason that we have an immigration reservation in respect of this convention. We could not operate an effective immigration system unless its functions—under powers given by Parliament—were not able to supersede other benefits that a person gets simply by being physically present in the country. If it did not matter how you got here, whether or not relatives who could look after you were here or whether or not they had obeyed the laws of this country—if all that mattered was that you should be physically present and claiming to be under 18 and that the immigration functions no longer applied to you—our system could not operate effectively or efficiently and another reason for impeding it would have been found.


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