Written Evidence by the Professor Charlotte O'Brien (IMB0057)

1)     This submission focuses on the following inquiry questions insofar as they relate to children (6, 11 and 15):

6. Clause 8 provides the Secretary of State with the power to remove a person’s family members as long as they meet certain conditions, including that they do not have leave to enter or remain in the UK, are not British or Irish citizens, and do not have the right of abode in the UK. What are the human rights implications of clause 8?

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?

15. Clause 30(4) provides that, if a child was born in the United Kingdom on or after 7 March 2023 and either of its parents, whether before or after their birth, have ever met the four conditions in clause 2, then the child is an ‘ineligible person’ for the purposes of applying for British citizenship. Is this prohibition compatible with the UK’s human rights obligations, particularly under Article 8 ECHR?

2)     This submission is arranged as following:

1. Introduction
2. The ambit of Article 8 ECHR
3. Engaging Article 14 ECHR
4. Directly engaging Article 8 ECHR
5. UN CRC Article 3
6. UN CRC Article 4
7. UN CRC Article 11, 32, 35
8. UN CRC Article 22
9. UN CRC Article 7 and UN Refugee Convention Article 34
10. The principle of intergenerational punishment

a. Introduction

3)     The proposed clauses all come within the ambit of Article 8 ECHR, and thereby engage Article 14 ECHR, amounting as they do to discriminatory provisions creating particular detriments to asylum seeking children, and the children of asylum seekers. Both are capable of being a relevant ‘other status’ for the purposes of engaging the protection from discrimination.

4)     Further, the proposed clauses meet the threshold for engaging Article 8 ECHR directly.

5)     Having engaged the ECHR, those provisions must be interpreted in light of the UN CRC provisions.

6)     The removal of children under clause 8, the removal of unaccompanied minors under clause 3, and the permanent prohibition of children obtaining British citizenship, under clause 30(4) on the basis of their parents’ circumstances of entry to the UK, are all incompatible with a number of international legal provisions – namely, the UN Convention on the Rights of the Child, Articles 3, 4, 7, 11, 32, 35 and 38.

7)     Clause 30(4) also breaches Article 34 of the UN Refugee Convention, on facilitating the naturalization of refugees. 

b. The ambit of Article 8 ECHR

8)     Article 8(1) ECHR provides:

“Everyone has the right to respect for his private and family life, his home and his correspondence”.

9)     To engage Article 14 ECHR, a matter must only fall within the ambit of Article 8 ECHR, which is a significantly lower threshold than direct engagement. It cannot be seriously doubted that a deprivation of a right to live in the UK, under clauses 3 and 8, and the deprivation of the right to acquire British citizenship under clause 30(4), all fall within the ambit of Article 8 ECHR as they have an impact upon private and family life, and also an impact upon the child’s home. To fall within the ambit of Article 8, an issue must have “more than a tenuous connection with the core values protected by Article 8” (Smith v. Lancashire Teaching Hospitals NHS Foundation Trust & Ors. [2017] EWCA Civ. 1916, 55). The connection is far from tenuous – it is direct and profound – indeed, the issues in fact directly engage Article 8 (as explored below), but that is not necessary for the purposes of exploring Article 14 ECHR.

10) Insofar as immigration and citizenship status have an impact upon one’s material entitlements, that could also bring the issue within the ambit of Article 8 (see Niedzwiecki v. Germany (Application no. 30209/05); Weller v. Hungary (Application no. 44399/05); Saidoun v. Greece (Application no. 40083/07); Gaygusuz v. Austria (Application no. 17371/90); Yocheva and Ganeva v. Bulgaria (Applications nos. 18592/15 and 43863/15)).

11) The European Court of Human Rights Guidance on Article 8 and immigration law[1] states that:

“Where foreigners do not qualify as “settled migrants”, because their presence in the territory of the respondent State was from the outset precarious, unlawful or based on breaches of immigration law, their removal from the respondent State will likely breach Article 8 only in exceptional circumstances.”(§77).

12) The guidance quotes case law which all treats Article 8 as engaged (and sometimes breached) by the removal of people who do not have a regularised immigration status (Butt v. Norway (Application no. 47017/09); Alleleh and Others v. Norway (Application no. 569/20); Jeunesse v. the Netherlands (Application no. 12738/10); Rodrigues da Silva and Hoogkamer v. the Netherlands (Application no. 50435/99); Pormes v. the Netherlands (Application no. 25402/14), and T.C.E. v. Germany (Application no. 58681/12)). By implication, the issue automatically falls within the ambit of Article 8 ECHR.

c. Engaging Article 14 ECHR

13) Immigration status is capable of founding the basis of an ‘other status’ for the purpose of engaging Article 14 ECHR. The ECtHR’s guidance on the Article 14 case law of the Court[2] states:

“The Court established that although immigration status was a status conferred by law, rather than one inherent to the individual, this fact did not preclude it from amounting to “other status” for the purposes of Article 14 (Hode and Abdi v. the United Kingdom, [Application no. 22341/09] 2012, § 47; Bah v. the United Kingdom, 2011, [Application no. 56328/07] § 46). Indeed, a wide range of legal and other effects flowed from a person’s immigration status (ibid.).”(§184).

14) The Court’s guidance notes that immigration legislation must be enacted “in a manner compatible with the principle of non-discrimination enshrined in Article 14” – citing Hode and Abdi v. the United Kingdom.

15) The Court found in the Hode v Abdi judgment, that the case for treating refugee status as an ‘other status’ was even stronger than for immigration status more broadly, because “as unlike immigration status refugee status did not entail an element of choice” (§47).

16) While the UK will not have accorded refugee status to those captured by the clauses in question, refugee status is a declaratory status, and it would be open to those affected to claim that status, while arguing that the UK has refused to recognise that status.

17) In the alternative, ‘asylum seeker’ is also a status in which there is not ‘an element of choice’.

18) In the further alternative, the case for finding children to be a group with a status under Article 14 is stronger still. They could be broken down into separate groups for the purposes of the clauses in question – unaccompanied minors seeking asylum (clause 3(2)); the children of asylum seekers (clauses 8(2)(b) and 30(4)).

19) The proposed provisions create disproportionate, discriminatory penalties for asylum seeking children, and the children of asylum seekers. The removal from the state of residence is a dramatic and profound detriment. The Court’s guidance on case law and Article 14 ECHR further notes that immigration provisions which do not themselves breach Article 8 ECHR may still breach the principle of non-discrimination:

“an immigration control measure otherwise compatible with Article 8 could amount to discrimination and a breach of Article 14 (Abdulaziz, Cabales and Balkandali v. the United Kingdom, [Application nos. 9214/80; 9473/81;

9474/81] 1985; Biao v. Denmark [Application no. 38590/10], 2016).” (§230).

20) The deprivation of the right to acquire British citizenship/to naturalise is similarly significant and damaging. The UN Integration Handbook states:

“Security of residency and legal equality in the receiving country is especially important in the early resettlement period. Recognising this, most countries grant resettled refugees permanent residence and confer upon them most of the same rights and responsibilities as nationals. Common exceptions are the right to hold a passport, to vote, to be employed in certain public sector positions or to hold public office.

The process of becoming a citizen of the receiving society is an important practical and symbolic milestone in the integration process, particularly given that resettled refugees have lost citizenship of their countries-of-origin. It affirms that resettled refugees ‘belong’ in the receiving society and allows them full participation in political life. Importantly, it accords them the right to consular protection in the event that they encounter difficulties while overseas and to travel on the passport of the receiving country. The process of securing citizenship also allows resettled refugees to state formally their obligations to the receiving society.”

d. Directly engaging Article 8 ECHR

21) The importance of the rights at issue, and existing case law, would also suggest that Article 8 ECHR is directly engaged, and the exceptional nature of the group affected – unaccompanied minors and the children of asylum seekers – would mean that Article 8 ECHR is likely breached.

22) Article 8 ECHR is limited in terms of the rights it can confer in an immigration context, but it does restrict the prerogative of Signatory States:

“Article 8 of the Convention does not go so far as to grant applicants the right to any particular type of residence permit (permanent, temporary, etc.), provided that the solution proposed by the authorities enables them to exercise unhindered their right to respect for private and family life (see Aristimuño Mendizabal v. France, no. 51431/99, §§ 65-66, 17 January 2006).”

                                                        B.A.C. v. Greece (Application no. 11981/15), §35 (Emphasis added).

23) The proposed provisions do not contain any solutions that allow the children affected to ‘exercise unhindered their right to respect for private and family life’.

24) It is ‘well-established case law’ that it will likely only be in exceptional circumstances that removal of a non-national family member of someone who is not settled in the State will breach Article 8 ECHR, if ‘family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious’ (Jeunesse v. The Netherlands (Application no. 12738/10) 108).

25) However, in Jeunesse, the Court gave an indication of some factors that rendered that case sufficiently exceptional, including the duration of residence in the State in question, the hardship that the family would experience if removed, and the best interests of the children:

“Where children are involved, their best interests must be taken into account (see Tuquabo-Tekle and Others v. the Netherlands, no. 60665/00, § 44, 1 December 2005; mutatis mutandis, Popov v. France, nos. 39472/07 and 39474/07, §§ 139-140, 19 January 2012; Neulinger and Shuruk v. Switzerland, cited above, § 135; and X v. Latvia [GC], no. 27853/09, § 96, ECHR 2013). On this particular point, the Court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance (see Neulinger and Shuruk v. Switzerland, cited above, § 135, and X v. Latvia, cited above, § 96). Whilst alone they cannot be decisive, such interests certainly must be afforded significant weight.” (§109).

26) In Jeunesse, the Court found that even though those interests had been considered, the assessment was insufficient:

“The domestic authorities had some regard for the situation of the applicant’s children (see paragraphs 23 (under 2.19 and 2.21), 28 and 34 (under 2.4.5) above). However, the Court considers that they fell short of what is required in such cases and it reiterates that national decision-making bodies should, in principle, advert to and assess evidence in respect of the practicality, feasibility and proportionality of any such removal in order to give effective protection and sufficient weight to the best interests of the children directly affected by it” (§120)

27) In contrast, the proposed provisions disregard by default the best interests of the children and so are designed to not include an appropriate individualised assessment of the best interests of the children in any given case.

28) Taking into account the ‘margin of appreciation’ doctrine the ECtHR confined itself in Sudita Keita v. Hungary (Application no. 42321/15) to assessing ‘whether having regard to the circumstances as a whole, the Hungarian authorities, pursuant to Article 8, provided an effective and accessible procedure or a combination of procedures enabling the applicant to have the issues of his further stay and status in Hungary determined with due regard to his private-life interests’, and found the State had not complied with its positive obligation, creating a breach of Article 8 ECHR.

29) The clauses at issue amount to a blanket policy to disregard personal circumstances and private life interests of asylum-seeking children and the children of asylum seekers. It is hard to see how this could be anything other than a blanket breach of the positive obligation outlined in Sudita Keita. In that case, the issue was the relevance of the best interests of the child in determining the status of the parent – the reasoning can only apply a fortiori, and create an even stronger positive duty, when specifically ruling on the removal/residence rights of the children themselves.

30) For the reasons outline here, these rules meet the ‘exceptional circumstances’ threshold for violating Article 8 ECHR.

e. UN CRC Article 3

31) Once ECHR provisions are engaged, they must be interpreted in light of the UN CRC (R (SG) v. Secretary of State for Work and Pensions [2015] UKSC 16).[3] 

32) Article 3(1) 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.”

33) The UN General Comment No 14 (2013) on the UN CRC Article 3 duty, underlines that ‘the child’s best interests is a threefold concept’; the three elements of the duty are: (i) a substantive right to have best interests assessed and taken as a primary consideration; (ii) a fundamental interpretative legal principle, so that between competing interpretations, that which best serves the best interests of children should be chosen; and (iii) a rule of procedure. This duty binds legislatures as well as delegated decision makers.

34) On (i), the substantive rule, the proposed provisions significantly violate the best interests of the children. On (iii), the rule of procedure, there is no evidence that in the formulation of the proposed legislation of any serious assessment or balancing exercise that treated the best interests of the affected children as a consideration at all, let alone a primary consideration.

35) The UN General Comment No 6 (2005), on the Treatment of Unaccompanied and Separated Children Outside Their Country of Origin spells out the particular importance of the best interests duty in this context:

“19… In the case of a displaced child, the principle must be respected during all stages of the displacement cycle. At any of these stages, a best interests determination must be documented in preparation of any decision fundamentally impacting on the unaccompanied or separated child’s life.

20. A determination of what is in the best interests of the child requires a clear and comprehensive assessment of the child’s identity, including her or his nationality, upbringing, ethnic, cultural and linguistic background, particular vulnerabilities and protection needs. Consequently, allowing the child access to the territory is a prerequisite to this initial assessment process. The assessment process should be carried out in a friendly and safe atmosphere by qualified professionals who are trained in age and gender-sensitive interviewing techniques.

21. Subsequent steps, such as the appointment of a competent guardian as expeditiously as possible, serves as a key procedural safeguard to ensure respect for the best interests of an unaccompanied or separated child. Therefore, such a child should only be referred to asylum or other procedures after the appointment of a guardian. In cases where separated or unaccompanied children are referred to asylum procedures or other administrative or judicial proceedings, they should also be provided with a legal representative in addition to a guardian.”

36) If it would violate the best interests of the child to refer them to the asylum system before appointing a guardian, it would surely violate their best interests even more acutely to bypass the asylum system altogether, as envisaged in the Bill.

f. UN CRC Article 4

37) Article 4 provides:

“With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.”

38) The right to claim asylum, to reside, to be protected from removal, and the right to naturalise, are each bound up with and confer rights to economic, social and cultural rights. The right to reside is the ‘gateway’ right.

39) The UN General comment No. 19 (2016) on public budgeting for the realization of children’s rights (art. 4) makes clear that this is also a non-regression provision:

“The obligation imposed on States parties by article 4 to realize children’s economic, social and cultural rights “to the maximum extent” also means that they should not take deliberate retrogressive measures in relation to economic, social and cultural rights. States parties should not allow the existing level of enjoyment of children’s rights to deteriorate.” (§31, emphasis added).

40) Each of the proposed provisions – clause 3(2), 8(2)(b) and 30(4), would result in considerable retrogression with regard to the economic, social and cultural rights of the affected children.

g. UN CRC Article 11, 32 and 35.

41) In providing for the removal of children, clauses 3(2) and 8(2)(b) risk placing children susceptible to the risk of illicit transfer and trafficking, contrary to the positive duties of protection provided for by Articles 11 and 35 UN CRC.

42) The provisions also risk driving children ‘underground’, if they seek to avoid removal, becoming subject to economic exploitation, prohibited by Article 32. 

h. UN CRC Article 22

43) Article 22 provides:

“1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, 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.

2. … In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.” (Emphases added).

44) In stark contrast, the proposed provisions bypass appropriate protection and humanitarian assistance, contrary to Article 22(1). Article 22(2) makes clear that unaccompanied minor asylum seekers should be treated equally with unaccompanied national children. Clause 3(2) manifestly breaches this principle.

i. Clause 30(4) and UN CRC Article 7 and UN RC Article 34

45) The proposed deprivation of the right to naturalise for children of asylum seekers who fall within the scope of the Bill, potentially infringes the right to registration and to protection from statelessness in Article 7 UN CRC – whether the right were engaged would depend on the facts of the individual cases. Article 7 provides:

“1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.

2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.”

46) In the context of those fleeing from their home states, it is quite possible that families would find it difficult to acquire the nationality of their home state for their children, in which case clause 30(4) could prevent the child from acquiring any nationality, and render them stateless.

47) UN Joint General Comment Joint general comment No. 4 (2017) “of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 23 (2017) of the Committee on the Rights of the Child on State obligations regarding the human rights of children in the context of international migration in countries of origin, transit, destination and return” states:

“24. While States are not obliged to grant their nationality to every child born in their territory, they are required to adopt every appropriate measure, both internally and in cooperation with other States, to ensure that every child has a nationality when he or she is born. A key measure is the conferral of nationality to a child born on the territory of the State, at birth or as early as possible after birth, if the child would otherwise be stateless.

25. Nationality laws that discriminate with regard to the transmission or acquisition of nationality on the basis of prohibited grounds, including in relation to the child and/or his or her parents’ race, ethnicity, religion, gender, disability and migration status, should be repealed. Furthermore, all nationality laws should be implemented in a non-discriminatory manner, including with regard to residence status in relation to the length of residency requirements, to ensure that every child’s right to a nationality is respected, protected and fulfilled.” (Emphases added).

48) The UN Convention and Protocol Relating to the Status of Refugees, Article 34 states:

“Naturalization

The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.”

49) As noted above, the UN has emphasised the importance of residential security and equal treatment rights provided via naturalisation mechanisms. Clause 30(4) would strip people of that right, regardless of the circumstances in which it was sought, because of the manner in which their parents had entered the UK. This lifetime ban is a disproportionate penalty, imposed upon people for the circumstances of other people’s actions. 

j. Inter-generational punishment

50) Clause 30(4) violates a core principle of international law, that punishments for parent should not be visited upon children. Not only does the provision punish children, it does so permanently; for many it is a lifetime ban.

51) The UK Supreme Court has ruled that children should not be punished for the actions of their parents: (Tanzania) (FC) (Appellant) v. Secretary of State for the Home Department (Respondent) [2011] UKSC 4, (33) and Zoumbas v. Secretary of State for the Home Department [2013] UKSC 74 (10).

52) In Rodrigues Da Silva & Hoogkamer v. The Netherlands (Application no. 50435/99), the ECtHR had to consider the effects of an immigration decision upon a child, and noted that in light of the child’s best interests:

“the economic well-being of the country does not outweigh the applicants’ rights under Article 8, despite the fact that the first applicant was residing illegally in the Netherlands at the time of Rachael’s birth. Indeed, by attaching such paramount importance to this latter element, the authorities may be considered to have indulged in excessive formalism.” (Emphasis added).

53) The permanent disentitlement of a child of rights on the basis of the circumstances of their parent’s entry to the UK has no recent precedent in the UK. To find any analogous life-long black-listing law, we have to go back to the laws on illegitimacy – the bastardy laws, which resulted in the dispossession of children on the basis of the marital status of their parents.[4] That we are borrowing the principle of permanent intergenerational punishment from the more draconian of the Poor Laws should in itself indicate that this is a regressive, punitive and unjustifiable measure, that is not in compliance with contemporary national or international legal principles. 

06/04/2023

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