HL Deb 24 June 1996 vol 573 cc633-41

(". Paragraph 16 of Schedule 2 to the 1971 Act (detention of persons liable to examination or removal) shall not apply to a young unaccompanied asylum seeker unless it appears that he is likely to abscond if he is not detained under the authority of an immigration officer.").

The noble and learned Lord said: My Lords, Amendment No. 59 relates to the detention of young unaccompanied asylum seekers of 17 years of age or younger. The amendment seeks to insert the following new clause: Paragraph 16 of Schedule 2 to the 1971 Act … shall not apply to a young unaccompanied asylum seeker unless it appears that he is likely to abscond if he is not detained under the authority of an immigration officer".

The 1971 Act empowers an immigration officer to authorise the detention of a refugee pending a decision as to his right of entry. This provision applies to children as well as adults, whether accompanied or unaccompanied. Detention takes place in an immigration detention centre or a secure hostel run by the Immigration Service. Sometimes it takes place in police cells or prisons for short spells. In none of those places is there any special provision for unaccompanied children, or indeed children at all. My amendment provides that a child refugee who is unaccompanied should not be locked up by the Immigration Service unless it appears that he is likely to abscond if not detained; that is to say—I use the definition in the Concise Oxford English Dictionary— If he is liable to go away secretly or fly from the law". According to the Refugee Council, over 50 unaccompanied children have been detained by the Immigration Service since April 1994 while their applications for asylum were being considered. To their great credit, the Government have issued directions for dealing with the detention of child refugees in a document issued by the Home Office entitled Immigration Service Instructions to Staff on detention. It states in paragraph 12: Authority at a minimum of Inspector level is required for the detention of children under 18, whether accompanied or not. Once authorized, detention should be reviewed by an Assistant Director within 24 hours".

My amendment seeks to fill the gap left by the Home Office instructions relating to unaccompanied children by specifying the circumstances in which detention may properly take place. If the amendment is not accepted by the Government, there will be no law, no practice directions, no guidance whatever for an immigration officer as to when it is proper to authorise detention. Surely he ought to be told, and surely the test should be: is the child likely to abscond, to go away secretly, or fly from the law? I beg to move.

The Lord Bishop of Ripon

My Lords, I am pleased to support the amendment. The number of young accompanied asylum seekers detained is not large, as the noble and learned Lord made clear; but, nevertheless, it is sufficiently large to arouse concern. I have the figure of some 54 young people who have been detained since the Refugee Council panel of advisers was set up. Most of them of course have been 16 and 17 year-olds, but there have been some 15 year-olds.

I have two particular concerns. The first is that those young people are placed in centres which are primarily for adults. They are therefore in the setting which is appropriate for adults but which is by no means appropriate for young people. My second concern is that I understand that there is no formal education provision within those detention centres. Therefore young people are being deprived of any opportunity for education during that period. That appears to put this country in breach of Article 28 of the UN Convention on the Rights of the Child.

We have been given a number of examples of children who have been detained. One of the points which strikes me, which bears on our debate on the previous amendment, is that in some cases the family situation is such that either one or both parents have been killed in a conflict. That means that such children are not merely in a strange country but may well have suffered the trauma of not just separation from, but the death of, other members of their family. It is wrong that such children should be detained in those circumstances.

I accept entirely the proviso which the noble and learned Lord included. There are circumstances in which it is right that such people should be detained, but unless that criterion is met, I do not believe that that is right. I am glad to support the amendment.

5.45 p.m.

Baroness David

My Lords, I support the amendment. My name is to it. It must seem intolerable to all of us that children can be detained, and very often these children are in adult prisons. It seems even more wrong that they should have to mix with adults on these occasions. The numbers, as has been said by the previous two speakers, are very few. So it would not be so difficult to get these children dealt with in a different way, and I am sure that that is possible.

In locking up these children, we are going against the UN Convention on the Rights of the Child to which the UK is a signatory. It quite clearly states in Article 37: The arrest, detention or imprisonment of a child … shall be used only as a measure of last resort for the shortest appropriate period of time … Every child deprived of liberty shall be treated … in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interests not to do so". While these children are in adult prisons it is most unlikely that they are getting any education at all. Their needs are not being taken care of. The panel of advisers is strongly against this locking up of children. I think that the House must feel that it is totally wrong that this should be going on in what we think of as a civilised country. I have great pleasure in supporting the noble and learned Lord's amendment.

Baroness Hilton of Eggardon

My Lords, in some ways we seem to be treating young people who are asylum seekers in a way which is worse than the way in which we treat young criminals. Under Section 38 of the Police and Criminal Evidence Act 1984, children may not be detained in police stations. They must be moved to local authority centres unless that would not be adequate to protect—is the Minister listening?

Baroness Blatch

My Lords, I listen all the time, but of course I have to take notes while people are speaking. I was taking a note at that particular moment. I have heard what the noble Baroness has said so far.

Baroness Hilton of Eggardon

My Lords, I am grateful to the Minister for that. I wish to make a point about young juveniles who are detained. They may not be detained in police stations unless local authority accommodation would not be adequate to protect the public from serious harm from that child. I feel that a similar standard should be applied to asylum seekers who have committed no crime; against whom a crime may well have been committed; and who, by being detained in a detention centre, are not receiving the education that they should. They are being detained with adults who may bully them or molest them in other ways. It is clearly inappropriate that children should be detained in detention centres rather than with foster parents or in local authority accommodation.

Baroness Rawlings

My Lords, detention is of course a serious situation. It may be even more traumatic for a child. I wonder whether my noble friend the Minister could put this matter into perspective. What percentage is currently detained? How many does that represent? How many are children? I have read that only one child is involved. Is it correct that the majority of those in detention have already had their claim for asylum refused? Are we dealing with cases that are not straightforward? So do we need to legislate specifically for such a small number? Surely they could be dealt with as very special cases.

Baroness Seccombe

My Lords, perhaps I may return to the subject of families. Will my noble friend the Minister tell us whether the children who are detained are detained because they are with their parents? It may be better for children to be with their parents than to be taken away and put in a place on their own.

Lord Renton

My Lords, as I understand it, only 1 per cent. of all asylum seekers is detained. A recent spot check—I am told on 19th June—showed that only one child under 18 was detained. If that is so, we need to bear that factor in mind.

It is also very important to remember that if a child comes here and is not genuinely seeking asylum—we know that there are a number of such children—it may not be in the child's interest to allow him or her simply to abscond and to get lost in the community. The child will find it difficult to live and may not have any money. The circumstances may be bad for the child. I should have thought that in such a case detention would be an advantage. I shall be interested to hear what my noble friend the Minister has to say, but I believe that it is a matter on which we need to be very careful.

Earl Russell

My Lords, I believe that the noble Lord, Lord Renton, will agree that it is of the essence of a concept of a right that it is equally valid if it applies to one person or to 10,000. If by law it can be done to one, it can be done to many others as well. John Wilkes was a single individual, and not a particularly deserving individual at that. However, the principle that another place could not override a free election, which arose in his case, was of general application and the unworthiness of the smallness of a single individual was no ground for sweeping it away.

The practice of detention is not widely used by other states which are signatories to the UN convention. The UN Commission on Human Rights and Amnesty International have considered the matter. For reasons which a number of speakers have mentioned, it is contrary to a good many of our international obligations. It is contrary to the UN Convention on the Rights of the Child, especially if children are detained with adults and if, as regularly goes with detention with adults, they receive no education. Of course, with the debate about proof of age, many people are detained as adults who in the view of many expert people should not be.

There then arises the question of whether such detention without any procedure that can be used to review it is contrary to Article 5 of the European Convention on Human Rights. The noble Lord, Lord Renton, and I engaged about the clause on the first day of Report. The words were agreed: No one shall be deprived of his liberty … save in accordance with a procedure prescribed by law". Last Thursday I asked the noble Lord, Lord Renton, whether for the detentions prescribed by statute we have a procedure or a power. When I read the words "a procedure prescribed by law", my understanding, subject to correction, is that one is dealing with a procedure for reviewing the legality of the detention; that the mere conferring of a power without any procedure to check its exercise does not come within the letter of the law. I should be most interested if anyone learned in the law, as I am not, could tell me whether that reading is correct. Subject to correction, it is my reading.

As recently as four years ago in this Chamber we used to hear Ministers of this Government proclaiming how proud this Government were of their ability to abide by their international legal obligations and how much they wished other governments would match the standards which they set. That does not seem to be the case now. Whenever we cite any international legal obligation we receive very much the standard reply—that the Government are confident they are not in breach of their international legal obligations.

However, it is not the Government's task to judge whether they are in breach of their legal obligations. That is something to be done by courts, whether national or international. So if the Government believe that they are not in breach of their legal obligations, that is simply their private opinion. It has no more status than the private opinions of any other litigant, and those are often wrong. It is because on questions of this kind the Government so regularly mistake their private opinion for fact that they are having such an unfortunate series of encounters with the courts. They ought to consider that their view of the matter is not necessarily infallible; they should not risk resembling the servant who offered an open testimonial and displayed it with pride, but when read, it stated, "During his period of service with me, Mr. So-and-so discharged his duties entirely to his own satisfaction".

Lord Renton

My Lords, I hope that I am in order in intervening but the noble Earl issued a challenge and mentioned me to answer it. Perhaps I may remind him that procedure is laid down under the Immigration Act 1971, Schedule 2, paragraph 16, which the amendment proposes to leave out. That paragraph refers to the procedure in paragraph 2, and we know that there is a mass of procedure governing the whole of this matter.

Baroness Williams of Crosby

My Lords, the noble Baroness, Lady Seccombe, was concerned about the need for children to be reunited with their parents. Perhaps I may point out to her that the amendment deals only with unaccompanied children. Therefore, any child accompanied by an adult—the phrase used is "a responsible adult", and one assumes that the child's parents would come into that category—would not be caught by the amendment. I fully sympathise with the noble Baroness's wish but I do not believe that the amendment addresses that issue. It addresses only the issue of children specifically not so accompanied.

As regards the remarks of the noble Baroness, Lady Hilton, I believe that there is no Member of this House with more knowledge of what is involved in keeping people in detention. As a former senior police officer she is well aware of what she is talking about. As the noble and learned Lord, Lord Brightman, said, at any time about 600 young people under the age of 18 are kept in detention while their cases are being considered. That has been the situation since about 1994. Of that number, some 54 have been dealt with and have received advice from the Refugee Council. I understand that of that latter group a substantial number is kept in detention for six or seven months. It is true that most are kept only for a few days but a substantial number has been kept for longer.

The noble Baroness, Lady Hilton, referred to the significance of what happens when a youngster under the age of 18 is kept with adults. All those children to whom I referred are detained with adults. The noble Baroness mentioned the difficulty of breaking off their education. None of those children has received any education; that appears to be true of them all.

Therefore, in pressing the amendment we are entitled to ask for a reassurance from the Government that children under the age of 18 will not be kept with adults, which in many cases may put them at grave risk. Secondly, I believe that we are entitled to ask for an assurance that in so far as is possible—none of us is asking for the impossible—those young people will be allowed to continue their education.

I strongly support the amendment. I believe that the objection raised by the noble Baroness, Lady Seccombe, has been met and that the point made by the noble Baroness, Lady Hilton, should receive significant consideration.

Lord Dubs

My Lords, perhaps I may speak briefly in support of the amendment. When I was at the Refugee Council some time ago I visited Campsfield House. I was surprised to find a young man of 14 or 15 in detention. When I queried that with the officials in charge of Campsfield House they stated that the reason he was there was that his elder brother, aged about 20, was being detained and they thought that they had better keep the two boys together.

I appreciate that the amendment would not cover that young man because he was not unaccompanied; he had an elder brother. However, I believe that in principle there was something wrong with keeping in an adult centre a young man of 14 or 15—Campsfield House is a prison—simply to keep him with his elder brother. But at the Refugee Council, when the panel of advisers was initiated, we discovered through the reporting mechanism that a number of young persons were being detained in various centres in different parts of the country. That certainly gave us a great deal of cause for concern.

In the case of the Campsfield House pair of brothers to whom I referred, it seemed to me that the answer was that neither of them should have been detained and then everything would have been on a sensible basis. However, there is one problem. If a young person is unaccompanied, it is appropriate and proper that he should have accommodation. But I do not think, as the noble Lord, Lord Renton, hinted, that the detention of a person can be justified by accommodation difficulties. It would be a lot more humane and proper to look after a young person in other accommodation, perhaps local authority or voluntary organisation accommodation, as an alternative to putting him in detention. This is a very sensible amendment which I hope the House will support.

6 p.m.

Baroness Blatch

My Lords, I believe that those who have spoken in favour of the amendment would have justified their case rather more strongly if, in the course of speaking to the amendment, they had not described a situation which simply does not pertain in this country on the scale which has been referred to.

The noble Earl, Lord Russell, referred to our international obligations. First, our record in relation to adhering to international obligations is very good in this country. The noble Earl is all too ready to note those few cases where the Government have lost a challenge on these issues, but the vast majority of cases, and in particular asylum cases, are won by the Government. Therefore, there is some imbalance in the criticisms made by the noble Earl.

Secondly, the procedure described by law is satisfied by the 1971 Act which confers the power to detain as confirmed by Strasbourg. There is also a right to apply for bail in all cases plus, of course, the supervision of judicial review which, again, the noble Earl was not ready to recognise.

The noble Earl said that we are not consistent with our obligations under the ECHR. That is simply not the case. This is not just our law. Decisions of the European Court of Human Rights have confirmed that the 1971 Act is indeed consistent with the convention.

Amendment No. 59 would exempt unaccompanied children who are seeking asylum from the powers of detention contained in the 1971 Act, unless it appears that the child is likely to abscond if he is not detained. That is the Government's policy in any event. I recognise that this is an important and sensitive issue. But I hope that those who have put their name to the amendment and others who have spoken during the debate will be able to derive some reassurance when I set out our approach to this issue.

It is the Government's stated policy that unaccompanied children under the age of 18 are detained only as a very last resort. Detention is authorised only where there are good grounds for believing that the minor would not comply with the terms of temporary admission, or to facilitate removal. Moreover, when it is considered necessary to detain a child who is under 18, whether accompanied or not, authority at a minimum of inspector level is required for the initial decision to detain, and this must be reviewed by an assistant director within 24 hours.

My noble friend Lord Renton referred to a spot check of case records on 19th June which indicated that only one asylum applicant who we were satisfied was under 18 years of age was in detention. It would be wrong for me to go into details about the case, which is now being considered by the Asylum Directorate. But I can say that the person is 17 years old and claimed asylum after he had entered the country illegally. That confirms that detention of young unaccompanied children claiming asylum is indeed very rare. There is therefore nothing between the movers of the amendment and the Government in terms of approach. The amendment reflects our current practice in cases involving detention.

However, we do not think it would be appropriate to include a provision of this nature in statute. First, the Government consider that the Immigration Service must retain the discretion to detain where absolutely necessary. I remind the House that fewer than 1 per cent. of asylum seekers are currently detained, the majority of whom have already had their asylum applications refused, a point made by my noble friend Lady Rawlings. Moreover, Schedule 1 to the Bill extends the right to apply for bail even further. Any passenger who has been detained for longer than seven days will be able to apply for bail to the appellate authorities, and detention may also be challenged in the courts by way of an application for habeas corpus or once a case is before the courts on an application for judicial review. This applies to all detained applicants, including unaccompanied children.

Secondly, the amendment refers specifically to unaccompanied children who are seeking asylum. Our approach to the detention of children, which I have explained to the House, applies equally to unaccompanied children who have not sought asylum. I believe that they are also of concern to us all. We do not consider that it is either appropriate or necessary to make a distinction between asylum and non-asylum applicants in terms of our approach to detention.

This amendment would distinguish between different kinds of asylum seeker—those who are port applicants or illegal entrants and those who are subject to deportation action. It would only affect the detention of the former—that is, port applicants or illegal entrants—and not those subject to deportation action.

There is general guidance on detention under the Immigration Act which applies to all those detained, including children. Detention is always regarded as a last resort and factors which are taken into account include risk of absconding; previous failure to abide by terms of admission; whether the applicant has close ties within the United Kingdom; and, indeed, criminal conduct or other matters which may make detention appropriate in a particular case. Children are not detained unless they fall within the existing guidance, and only then as a last resort.

The noble Lord, Lord Dubs, referred to his visit to Campsfield. I think there may well be a very good argument for keeping a younger brother together with his older brother. I do not believe that it is right for the noble Lord or for this House to second-guess the serious consideration which would have been given to the case of both brothers and to the case of the younger brother in particular.

I also think that it is quite wrong to assume that the older brother was there for no good reason, because the noble Lord suggested that even he should not be there. I suggest that a 17 year-old or even an older young person is quite capable of falling foul of the conditions necessary for him not to be detained.

As I have said, fewer than 1 per cent. of all asylum seekers are currently detained. On 7th June, 751 asylum seekers were detained. As I said, that represents about 1 per cent. of the total number. The great majority of those in detention have already had their claims refused. Of the 751 in detention on 7th June: 181 were awaiting initial decision; 400 were awaiting the results of appeals; and 170 were awaiting removal.

Therefore, children are detained only in exceptional circumstances and as a last resort and almost always because there is a serious risk of absconding. The Government have no plans to change that approach. Therefore, I hope that the noble and learned Lord, Lord Brightman, will, first, recognise that we genuinely concern ourselves with the welfare of young people seeking asylum, whether accompanied or not; and, secondly, will feel able to withdraw the amendment in the light of the assurances that I have given to the House.

Lord Brightman

My Lords, the detention of child refugees was rightly described by the noble Baroness on 4th July, 1995, at col. 1080 of Hansard as a "vexed issue". It is indeed a vexed issue. I should like to study what has been said during this short debate. I hope that the Government will consider giving a little more guidance to immigration officers as to the circumstances in which it may be considered proper to detain an unaccompanied child. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Brightman moved Amendment No. 60: Before Clause 8, insert the following new clause—