1.  Introduction

1.1  Law Centre shares the Minister’s hope that this Code of Practice will ‘shift the [BIA’s] culture – its attitude and its behaviour towards children.’  We echo his concern that ‘children who are subject to immigration control are dealt with either as adjuncts of those adults with whom they arrive in this country or by procedures designed principally for adults.’

1.2  In our experience, there are a number of issues facing children subject to immigration control in Northern Ireland which are particular to this jurisdiction.  First, and most significantly, is the policy of removing children from Northern Ireland to detention facilities in England or Scotland.  Law Centre (NI) is opposed to the detention or removal of children. This practice causes significant harm to the child.  We are aware of cases where children have been separated from parents during removal and detention; experiences that are harmful and traumatic for the children and parents involved.  Removal from Northern Ireland also breaks the link with established legal representation.  In addition, there is no equivalent body to the Refugee Council Children’s Panel in Northern Ireland, leaving children particularly vulnerable both to the operations of immigration officials and to the activity of criminals seeking to exploit their vulnerability through trafficking and other ways.   Furthermore, there is also a lack of fully trained age assessors. 

 

1.3 We have also become aware of an increasing number of unaccompanied and trafficked children in Northern Ireland.

 

2. Rationale for the Code

 

2.1 Law Centre (NI) supports the introduction of the Code. 

 

2.2 The adoption of this Code of Practice is not, however, a substitute for clear legal obligations to keep children safe from harm.  We endorse ILPA’s concern that the desired outcomes of the Code of Practice could be better obtained through applying s.11 Children Act 2004 to the Border and Immigration Agency as it already is to other state agencies. This would mean the Border and Immigration Agency would have a statutory duty to “ensure that their functions are discharged having regard to the need to safeguard and promote the welfare of the child”. This is actually a higher duty of care than set out in the Code and would be more in keeping with the stated goal of the minister that ‘every child does matter – as much if they are subject to immigration control as if they are British citizens.’  Law Centre (NI) recommends that similar provision be extended to Northern Ireland. 

 

2.3 Additionally, we would wish to see the Home Office designated as a public authority for the purposes of Section 75 of the Northern Ireland Act.  We fail to see why the Agency should not be bound by the obligations under Section 75 of the Northern Ireland Act (1998) in relation to its practice in Northern Ireland.  This is reinforced by the fact that the equality duty contained in the Race Relations (Amendment) Act 2000 does not extend to BIA’s work in Northern Ireland.

UK Reservation to the UN Convention on the Rights of the Child

2.4 Law Centre (NI) believes the UK government should immediately end its reservations to the UN Convention on the Rights of the Child (UNCRC).  It is inconsistent with the Ministerial commitment that ‘every child matters’ for the UK government to maintain the “immigration reservation” (the reservation) to the Convention. Maintenance of the reservation creates a category of children (those subject to or affected by immigration control) who do not benefit from UNCRC principles.

2.5 We would remind the Home Office that the United Nations Committee on the Rights of the Child has called for the UK to ‘… adopt the best interests of the child as a paramount consideration in all legislation and policy affecting children throughout its territory, ... [including] in immigration practices’[1] and for the UK to ‘reconsider its reservation to article 22 with a view to withdrawing it’.[2

 

 

3. Protection from Harm

Legal Representation

3.1 In order to ensure that children are adequately protected from harm they need to have access to independent legal advice.  This can help children understand what is going on and can help attain the best outcome for the child. Furthermore, as the stated aim of Government policy is to protect the child from harm, we would argue, in line with the End Child Prostitution, Child Pornography and the Trafficking of Children for Sexual Purposes UK campaign, that a guardian be appointed in every minor case to safeguard the welfare of the child.[3]   

 

3.2 A major failing of the Code is that it does not establish a right of access to legal advice/representation for children affected by immigration control.   Children are less likely to understand the legal complexities facing them, less able to articulate complaints and often less confident and thus less likely to complain.  Given children’s particular vulnerabilities, we recommend that the Code sets out obligations on the Agency to ensure that children have effective access to legal advice/representation.  The Agency should be required to make available contact details of all independent OISC local providers of immigration advice and representation. 

 

3.3 We would also note that the Code needs to recognise that children communicate in very different ways from adults.  This can have the potentially harmful effect of distorting their presentation of what has happened to them.  Often this can be caused by fear or trauma, trying to please the immigration official questioning the child or by giving the child the answers expected of him or her.  It is a further reason for supporting the provision of both independent legal advice for these children and also a guardian.

 

3.4 In Northern Ireland, particular problems arise in relation access to legal advice for those children subject to removal.  Children have been removed from the territory to detention facilities without notification by Agency officials to their legal representatives.  An obligation to ensure access to legal advice/representation should therefore encompass a duty to ensure, as far as possible, continuity of established legal advice/representation.

Detention and Removal

3.5  The Law Centre is strongly opposed in any circumstances to the detention of children under immigration controls. We would support the Refugee Council’s position that such children should never be placed in detention and we endorse the recommendations of the UN Committee on the Rights of the Child that the UK Government should ‘...refrain, as a matter of policy, from detaining unaccompanied minors and ensure the right to speedily challenge the legality of detention, in compliance with Article 37 of the Convention’.[4]

3.6  Detention and removal constitutes serious ‘harm’ to a child.  The trauma of this is exacerbated in cases of removal from Northern Ireland where children may be detained first in PSNI detention suites prior to their removal to Dungavel and/or other detention centres and by the physical separation from family and friends occasioned by their removal across the Irish Sea.  We would argue that the practice of removing children from Northern Ireland, under immigration controls, should be suspended pending a review into the harm such a process has on children.

3.7  The Code sets out that the Agency will only detain children ‘as a last resort’. Law Centre (NI) would argue there is an urgent need to establish an independent body with significant power to conduct oversight and investigation of detention and removal policies and practice. 

Family separation

3.8 We do not believe that detaining families as an alternative to separating children and parents in the time leading up to departure is a preferable approach.  We would argue that both detention and the separation of families are harmful to children and risk putting the immigration authorities in breach of the UK’s obligations under both Article 5 and Article 8 of the European Convention on Human Rights, as incorporated into domestic law by the Human Rights Act. This will, inevitably lead to costly litigation and could be avoided if the Code were to be drafted differently. 

 

3.9 We would suggest that there should be provision for these families to remain in their homes prior to removal.  We have already suggested to Border & Immigration officials that Northern Ireland would benefit from more accommodation of this type being available instead of the current policy of removal to a detention centre.

 

3.10 We would argue that in complying with the goal of preventing harm to the child the Government should consider granting residence in cases when children are involved in Family Court considerations.  The commitment of the Government to keeping children safe from harm should give the child the same protection as a UK child citizen in order to avoid the harm of discrimination.  A child should not suffer due to the immigration status of their parents or guardians.  We would argue that the approach of granting status should be adopted even in cases where it leads to new entitlements to reside here for the child’s parents or guardians.

Age Disputed Cases

3.11 The Code should state that a person claiming to be a child should be treated as such, unless there is compelling evidence to comprehensively refute this claim such as the results of a thorough age assessment carried out by a qualified person.  Immigration officials do not have the training to do this. This would ensure that no child is mistakenly treated as an adult.

Unaccompanied Asylum Seeking Children  

3.12 The Code correctly states that ‘the best people to care for a child are ideally the child’s parents’.  Special care is required in dealing with the needs of those children who are in the UK alone, including those that have been trafficked and unaccompanied asylum seeking children.  The Code should give greater emphasis to how support and information is provided to these two groups.  There needs to be clear guidance on how to co-ordinate care for children who lack the emotional and physical support of their parents and this approach needs to be co-ordinated across all the relevant agencies eg social services, GPs, dentists, PSNI, education boards, support groups and UK Border and Immigration Agency staff.  

 

4. Operational/Governance Issues

Training and Facilities  

4.1  The importance of having specially trained staff to work with children is vitally important.  As already noted, care must be taken in interviewing and providing the necessary support for children.  No child should be interviewed by an immigration official who has not received specialist training.  This is of particular concern in Northern Ireland.  We are unaware of immigration staff with specialist training in Northern Ireland.  We would recommend that training for staff based in Northern Ireland to prevent any child coming to harm is provided as an immediate priority.

4.2 A further measure to better protect children in Northern Ireland from harm is that children should only be interviewed in suites specifically designed to put children at ease.  Currently there are no such suites in Northern Ireland.  We would argue that there should be investment in providing facilities in Northern Ireland comparable to those recently put in place in Croydon. 

Operational Instructions

4.3 It is difficult to provide a full response to the Code of Practice for keeping children safe from harm due to the omission of the operational instructions for the Code.  While there are certain aspects of the Code that we would, in principle, support we are unsure how the Border and Immigration Agency intends to apply them in practice.

 

4.4 Section 3.3 indicates that the Code will be supported by operating instructions that cover all the main occasions when the Border and Immigration Agency has substantive contact with children. The instructions proposed in the Code are:

Interviewing of children to substantiate their application and their circumstances;

1. Children during enforcement activities;

2. Children during detention activities;

3. Children during escorting activities;

4. Children and contractor-led or other commissioned services;

5. Special groups – missing children; trafficked children.

 

4.5 Law Centre (NI) would support the drawing up of operating instructions for all these situations.  As we have stated above we feel it would be easier to comment on the proposals in the consultation if a set of operating instructions had been included.

Case Monitoring

 

4.6  We welcome the measures in the Code to track cases and to flag problems.  We would agree with all the indicators referenced by the Code as warranting referral and would add that the list is not exhaustive. 

Departure from the Code

4.7 It is proposed that there should be a requirement for Border and Immigration Agency 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. This approach is, in its nature, retrospective.  Law Centre recommends that the Code requires the Agency official to explain the purpose of a proposed departure from the Code and seek the consent of the child in the presence of independent legal advice.  Similarly, a requirement to obtain prior permission from a senior manager for a departure from the Code should be considered. 

Complaints System

4.8 The draft Code indicates that the Border and Immigration Agency complaints system will be the appropriate route for complaints relating to the Code (section 3.8.1).  We would agree that there should be a dedicated complaints system. It is important that there is a route for children to access if they have a complaint. We agree with ILPA that for a number of reasons the system proposed does not meet the specific needs of children.   In particular ILPA comment that:

1. Children are unlikely to be aware of the Code of Practice, and even if they are, they are unlikely to be able to identify where BIA has breached it;

2. Children are less likely to complain than adults because of their immaturity, lack of assertiveness, lack of awareness of their rights and their fear of the consequences of complaining on them and their immigration case.

3. 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 BIA Complaints Handling System.

4. Complaints are ad hoc and offer post hoc redress to individual complainants when and if their complaints are substantiated.

A system of actively monitoring BIA staff compliance by responsive line managers would be preferable.”

 

4.9 It is for these reasons that we argued above that there is a need for independent legal advice and guardians for these children.

Inspection

4.10 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. Areas suggested for inspection include:

1. The reasons given for detaining families with children;

2. The way that this contributes to the outcome of the immigration process;

3. The nature and quality of recorded information about detention that is publicly available;

4. The health and well-being of a child throughout the detention process;

5. The transport of children from one immigration centre to another;

4.11 While all of these areas should be included on the list of issues that might be inspected we would argue that improved access to independent legal representation would offer a further way that a child could raise complaints about the system. Strong independent inspection is important but it is retrospective.  If problems occur and the child has no-one to help them they are less likely to raise grievances that adults or express them as clearly. 

Cross-Agency Working

4.12  At a recent event in Northern Ireland, organised by Law Centre (NI) with the UNHCR, UNICEF and the Refugee Council, participants from a range of services who deal directly with unaccompanied asylum seeking children stressed the need for better information and communication.    We would argue that the Border and Immigration Agency should work more closely with the relevant Northern Irish bodies.

 

5. Concluding Remarks

 

5.1 We believe that the measures in the Code are an improvement on the situation facing children subject to immigration controls at present.  However we still feel that to ensure that children do not suffer harm as they pass through the immigration system more needs to be done.  We would argue there needs to be better training for officials working with these children, better facilities for them and stronger measures to prevent deviation from the Code and to allow complaints and inspections. The Government should end the practice of detaining children, should operate a presumption in favour of the child age dispute cases and ensure that all these vulnerable children have access to fully independent legal advice.  Finally the Government should fully implement the recommendations of the UN Committee on the Rights of the Child to provide these children with the strongest legal framework possible and withdraw its reservations to the UNCRC.

© Law Centre (NI) 2008