Written Evidence by the UK Committee for UNICEF (IMB0034)

UNICEF UK is an integral p[art of the United Nations Children’s Fund (UNICEF).

UNICEF is mandated by the UN General Assembly to uphold the Convention on the Rights of the Child (hereinafter: CRC) and promote the rights and wellbeing of every child. Together with partners, UNICEF works in over 190 countries and territories focusing special effort on reaching the most marginalised and excluded children. Article 45 of the Convention calls on UNICEF to work together with governments and support them in implementation of the Convention.

UNICEF UK welcomes the inquiry by the Joint Human Rights Committee into the Illegal Migration Bill and submits herewith its response to Question #11.

Children

11. To what extent do the provisions of the Bill relating to both unaccompanied and accompanied children comply with the UN Convention on the Rights of the Child and domestic human rights obligations. In particular, is clause 3(2), which gives the Secretary of State the power to remove an unaccompanied child from the UK in certain circumstances, compatible?

Overall conclusion

UNICEF UK shares the UK Government’s concern regarding the number of asylum-seekers taking risky journeys across the Channel. However, this issue can be addressed while respecting children’s rights under the CRC. In recent years the UK has made important progress on issues such as protecting the rights of children who have been victims of trafficking and on working to end child immigration detention – but that progress would be reversed by this Bill. . We believe that the Illegal Migration Bill is inconsistent with the UK’s obligations under the CRC.

Importance and relevance of the CRC

The Convention on the Rights of the Child is the most comprehensive international treaty providing a set of minimum obligations that a state owes to a child, both generally and within the asylum context[1]. Although the 1951 Refugee Convention remains the “cornerstone of the international refugee protection regime”[2], the CRC contains legally binding obligations that relate both in general and specifically to the protection of human rights of children in the context of international migration in the countries of origin, transit, destination and return.

The United Kingdom is a State Party to the CRC and “is dedicated to promoting children’s rights in all aspects of society and ensuring the Convention is reflected in domestic legislation”. [3] The CRC is a non-incorporated treaty but the CRC’s rights and obligations are given effect through legislation and policies.[4]

Illegal Migration Bill and the CRC

We are pleased to note that some Clauses in the Bill have been drafted with reference  to the CRC. The European Convention on Human Rights Memorandum states that Clauses 15 to 20 concerning the provision of accommodation and support to unaccompanied children have been considered in light of the Section 55 of the Borders, Citizenship and Immigration Act 2009 and the CRC.[5]

Section 55 of the Borders, Citizenship and Immigration Act 2009 was enacted in order to implement the CRC requirements around the best interests of children, set out particularly in Art 3 of the CRC, with respect to the way in which the Home Office exercises its nationality and immigration functions. The Secretary of State is required to have regard to the section 55 duty in the exercise of her functions.

Article 3(1) of the CRC provides:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.

The scope of the duty is broad, meaning that it is a requirement in relation to any immigration decision taken within the UK.  All asylum and immigration policies and practices at every stage of the process must comply with the duty to treat a child's best interests as a primary consideration, irrespective of the child's immigration status. The same duty applies to both unaccompanied and separated children and children in families. The duty applies to how claims are considered and decisions are made, as well as to procedures and processes.

We also note with concern that no Child Rights Impact Assessment has been conducted. Consideration should have been given to the CRC when developing new legislation.

Ensuring that all the provisions of the CRC are respected in legislation and policy development and delivery at all levels of government demands a continuous process of child impact assessment (predicting the impact of any proposed law, policy or budgetary allocation which affects children and the enjoyment of their rights) and child impact evaluation (evaluating the actual impact of implementation). This process needs to be built into government at all levels and as early as possible in the development of policy. As the UN Committee on the Rights of the Child stated: “Self-monitoring and evaluation is an obligation for Governments.”[6]

There are also domestic measures requiring the preparation of formal impact analysis statements.

The Cabinet Office Guide to Making Legislation (2022), covers the procedures to be followed in preparing primary legislation, highlighting the importance of giving due consideration to the CRC.

The UK Government introduced a Child Rights Impact Assessment template in 2018 to ensure that CRC articles are considered during legislative and policy development.

Recommendation

We ask the Joint Human Rights Committee to urge the UK Government to conduct and publish a Child Rights Impact Assessment and / or a Section 55 analysis for the Illegal Immigration Bill and its implementation, in relation to all children, before commencement of any of the Bill’s provisions.

Main concerns with the Illegal Migration Bill

1.  Inadmissability and removal

• Clause 2: Sets out the duty on the Secretary of State to remove anyone who arrives in the country irregularly and meets the four conditions in that clause.

• Clause 3: Exempts temporarily unaccompanied children under the age of 18 from the Secretary of State’s duty to remove but does reaffirm her power to remove such a child.

• Clause 4: Sets out that any person meeting the Clause 2 conditions will have their protection or human rights claim declared ‘inadmissible’ and will be denied the right to claim asylum.

• Clause 31: even if the Secretary of State were to exercise her discretion to grant some form of leave, anyone who had ever been subject to the removal duty would be permanently ineligible from becoming a British citizen.

As reaffirmed by the UN Committee on the Rights of the Child in its general comment No. 5 (2003) (paras. 18-23), States parties to the CRC have to ensure that the provisions and principles of the treaty are fully reflected and given legal effect in relevant domestic legislation.

Article 3 (1) of the CRC must be respected during all stages of the child’s displacement cycle.

The obligation stemming from article 22 of the CRC to take “appropriate measures” to ensure that a child who is seeking refugee status receives appropriate protection entails, inter alia, the responsibility to set up a functioning asylum system and the UN Committee on the Rights of the Child has clarified that asylum-seeking children, including those who are unaccompanied or separated, shall enjoy access to asylum procedures and other complementary mechanisms providing international protection.[7]

The ultimate aim in addressing the fate of unaccompanied or separated children is to identify a durable solution that addresses all their protection needs, takes into account the child’s view and, wherever possible, leads to overcoming the situation of a child being unaccompanied or separated.

A durable solution will be long-term and sustainable. It will ensure that the unaccompanied or separated child is able to develop into adulthood in an environment which will meet his or her needs as well as fulfil her/his rights as defined by the CRC and will not put the child at risk of persecution or harm.[8]

The Bill would effectively punish children for the actions of a parent by making a person ineligible to apply for British nationality if at any time before or after their birth either of their parents was subject to the removal duty. Even a child born in the UK would be barred from becoming a British citizen if one parent was ever subject to the removal duty. These provisions are not compatible with Article 2 of UNCRC, which prohibits discrimination against children on account of a parent’s “status”.

As set out by the UN Migration Network:

For cases involving children, the precondition to the return of any child – whether the child is unaccompanied, separated or within a family – is that return has been found to be in their best interests through an individual and participative process aimed at identifying a sustainable solution with the central involvement of child protection authorities. States should examine each individual child’s case in their own right and in an age- and gender-sensitive manner, and take into account the specific rights and vulnerabilities of children. To determine whether return is in the best interests of the child, States should implement a formal, multi-disciplinary, individual, documented, best interests procedure that aims to identify a sustainable solution that protects the long-term best interests and welfare of the child by considering all options. When it is determined that return is in the best interests of the child, child protection actors should collaborate across borders prior to and during the return and an individual reintegration plan should be prepared with the child’s input.[9]

Conclusion

A blanket provision on inadmissibility and subsequent removal, if applied to children without undertaking a best interests procedure and implementing its determinations,  would not be compliant with the CRC, in particular Article 3. 

Giving unaccompanied children just a temporary exclusion from removal would prevent them from having their durable solution identified and realised and leave them in a situation of permanent limbo[10]. That would not be in line with the CRC, especially Articles 6 and 20. It is also unclear how this is compatible with Article 8 of the European Convention on Human Rights, or the Government’s own Private Life route, as a person who has spent a significant portion of their life in the UK will have developed a ‘private life’.

Barring children from ever applying for British nationality because of their parent’s status is not compatible with Article 2 of CRC.

2. Child detention

• Clause 11: Gives the Secretary of State powers to detain those subject to the duty to remove, to detain unaccompanied children and to detain children within families with broad discretion on where to detain and for how long.

This is not compatible  with international standards and also risks  undermining the great progress that the UK has achieved in working to end immigration detention of children since 2010.

Article 37 (b) of the CRC establishes the general principle that  a child may be deprived of liberty only as a last resort and for the shortest period of time. However, offences concerning irregular entry or stay cannot under any circumstance have consequences similar to those derived from the commission of a crime.[11] Two relevant UN Committees have stated that the possibility of detaining children as a measure of last resort, which may apply in other contexts, such a juvenile criminal justice, is not applicable in immigration proceedings as it would conflict with the principle of the best interests of the child and the right to development.[12]

The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has stated that “within the context of administrative immigration enforcement … the deprivation of liberty of children based on their or their parents’ migration status is never in the best interests of the child, exceeds the requirement of necessity, becomes grossly disproportionate and may constitute cruel, inhuman or degrading treatment of migrant children.[13]

Finally, independent public bodies should be able to regularly monitor immigration detention facilities or procedures. It is thus regrettable that the Illegal Migration Bill intends to  terminate the Independent Family Returns Panel.

Conclusion

We emphasise the harm inherent in any deprivation of liberty and the negative impact that immigration detention can have on children’s physical and mental health and on their development, even when they are detained for a short period of time or with their families. We therefore think that the wide powers in Clause 11 would not comply with the principle of the best interests of the child, and are not in line with the Articles 6 and 37c.

3. Protection of child victims of trafficking

• Clause 21: Deems persons subject to removal who may be victims of modern slavery “threat(s) to public order” disqualified from protection unless they are cooperating with an investigation or criminal proceeding.

• Clause 22: Disapplies the Secretary of State’s duties under Section 50A of the Modern Slavery Act 2015 to provide necessary assistance and support to potential victims during the recovery period.

The measures proposed in this Bill would withhold modern slavery protections under the National Referral Mechanism from child survivors of trafficking or their family members who meet the four conditions set out in Clause 2. For unaccompanied children, despite being identified as victims, they would be denied the protections they should receive, such as access to support under the Modern Slavery Victim Care Contract or temporary leave as victims of trafficking upon turning 18. Any children of victims who meet these four conditions will also be disqualified from accessing specialist victim support, including safe house accommodation, subsistence, mental health services and/or outreach support.

The recognition of trafficking as a human rights violation invokes responsibilities for States under international human rights law to respect, protect and fulfil the rights of all persons within their territory.[14]

Article 35 of the CRC requires all States to take appropriate measures to prevent the abduction, sale or trafficking of children. This is a positive obligation.

Article 8 of the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (OPSC), to which the UK is a State Party,  requires that States Parties “adopt appropriate measures to protect the rights and interests of child victims of the practices prohibited under the present Protocol at all stages of the criminal justice process.” This detailed article contains 10 provisions on the treatment to which child victims are entitled. These rights are not conditional on cooperation by the child.

Conclusion

The Illegal Migration Bill, if enacted, would not be consistent with the obligations in the CRC and the OPSC. Children should be exempted from Clauses 21 and 22.

06/04/2023