WRITTEN EVIDENCE FROM BAIL FOR THE CHILDREN’S SOCIETY (RWA0011)

 

1.                   Introduction and Summary

 

1.1              The Children’s Society is a leading national charity committed to improving the lives of thousands of children and young people every year. We work across the country with some of the most disadvantaged children and young people through our specialist services to ensure these children are protected and their rights upheld. We place their voices at the centre of the work that we do.

 

1.2              Amongst the children and young people we support are unaccompanied children and young people seeking international protection, children in asylum-seeking families, victims of modern slavery, and others with an irregular, uncertain or unresolved immigration status.

 

1.3              The Children’s Society has long called for a fairer immigration system: a system that is efficient, just and treats children with dignity and compassion, no matter their nationality or immigration status. Our submission focuses on the impacts and human rights concerns of the Safety of Rwanda Bill on children and young people arriving in the UK seeking safety.

2.                   Further Concerns

 

Question 7: Does the Bill give rise to any other significant human rights concerns?

 

2.1              Yes, the Safety of Rwanda Bill gives rise to concerns for the specific rights of children. Although the Bill does not mention children, it will have serious impacts for children, their rights, development and well-being.

 

2.2              Of first note, Clause 1(6), which defines ‘international law’ by listing various conventions upon which the Bill touches, fails to explicitly include the UN Convention on the Rights of the Child (UNCRC), which the UK ratified in 1991. International law is integral to children’s rights and their protection, as epitomised by the UNCRC. This omission means children’s rights are largely ignored by this legislation and the Bill’s broad impacts may not be fully appreciated.

 

2.3              Integral to the UNCRC is Article 3, setting out that in all actions relating to children, the best interest of the child is to be a primary consideration.[1] Article 2 makes clear that any State Party is to respect and ensure the Convention rights of any child within its jurisdiction without discrimination of any kind.[2] Consequently, the UK Secretary of State bears a duty to safeguard and promote the welfare of children under Section 55 of the Borders, Citizenship and Immigration Act 2009 no matter their nationality or immigration status, in exercising the Home Office’s immigration, asylum or nationality functions.[3]  It is through Section 55 that the spirit of the UK’s obligation to the best interests principle – as set out in Article 3 of the UNCRC – for asylum seeking children has been translated into UK law.[4] The Government and Bill’s intention to remove individuals seeking safety, including children, to a third country is contrary to children’s  best interests, as outlined below. In recently reviewing the UK’s child right’s record, the UN Committee on the Rights of the Child concluded and urged the United Kingdom ‘to ensure that children and age-disputed children are not removed to a third country’ in light of the Rwanda plans.[5]

 

2.4              The Safety of Rwanda Bill will impact children seeking safety whether unaccompanied or accompanied by family. Although the UK-Rwanda Treaty[6] sets out that it is not the Government’s intention to remove unaccompanied children under the age of 18 to Rwanda, it nonetheless acknowledges that this real risk exists. Article 3(4) provides that any unaccompanied child removed to Rwanda and subsequently found by a UK court to be under 18 years of age is to be returned to the UK, with Article 11 setting out the measures that are to be taken to return an individual to the UK.[7] The Government has thereby recognised the risk that unaccompanied children under the age of 18 may mistakenly be removed to Rwanda and must then seek redress in UK courts while they wait in Rwanda – this cannot be in the best interest of any child.

 

2.5              Time and time again we see the Home Office incorrectly assess unaccompanied young people as adults upon arrival in the UK. These children are wrongly treated as adults and later determined to be children after further assessment. Data collected by Helen Bamber Foundation found that in 2022 across 70 local authorities there were 1386 referrals to their children’s services department of young people who had initially been assessed to be adults and sent to adult accommodation or detention.[8] Of these, two-thirds were found to actually be children – meaning that in 2022, 867 unaccompanied children were wrongly treated as adults, placed in adult accommodation or detention, and put at significant risk.  The Refugee Council similarly found in 2021 that of the 233 young people referred to them who were initially determined by Home Office to ‘certainly’ be adults, 94% were later determined to be children.[9] Under the Bill, such unaccompanied children would now face the far more stark consequence of being wrongly removed to Rwanda, with only the hope that their plight will be picked up, their challenge quickly progressed through the UK courts, and the mistake resolved – all at significant risk to their physical and mental well-being.

 

2.6              This Bill will definitively impact children in asylum-seeking families.[10] The treaty makes clear that children in families may be removed to Rwanda.[11] Forced removal has devastating impacts on families, mental and physical health and will blight the childhoods and development of these children.[12]

 

2.7              Finally, for children, the disapplication of Section 3 Human Rights Act 1998 (‘HRA’) in proposed Clause 3(4) of the Bill will be significant. Section 3 HRA would require the Secretary of State to read his duties under the Bill in a way that is compatible with Convention rights. Clause 3(4) would relieve him of the obligation to do so. As the Bill’s Explanatory Notes set out “Section 3 of the Human Rights Act 1998 requires that, so far as it is possible to do so, all legislation must be read and given effect in a way which is compatible with the Convention rights. The effect of this clause is that this Bill must be read and given effect only in the specific manner in which Parliament has provided.”[13] This is problematic. The HRA has proven critical in the protection and promotion of children’s rights. As the UNCRC is not incorporated into UK domestic law, the HRA provides the vehicle to enforce rights contained in the UNCRC. The interpretative obligations of the HRA have served as an important check on public authorities to ensure they make rights-respecting decisions and act accordingly. It has proven a critical tool, allowing us to remind public authorities at all levels that they must comply with children’s rights. Should Section 3 HRA not apply to the provisions, duties and powers set out in this Bill, there is a risk the best interests of the child and the Secretary of State’s duty to promote the welfare of children may be interpreted differently than previously and to the detriment of children. It would again[14] set a very dangerous precedent for the protection of children and children’s rights in future legislation.

3.                   Conclusion

 

3.1              The UK’s asylum policies and approach should protect the human rights standards that the UK promotes around the world. The Government’s focus should be on building a fair, humane and functioning asylum system ensuring reception conditions promote dignity, and fair decisions are made that stand up to judicial scrutiny. In light of the Home Office’s duty to promote and protect the welfare of children as set out in Section 55, our asylum system should be changing to give children and young people greater protection and put their safety and well-being first. Instead, the Safety of Rwanda Bill will jeopardise the best interests of children and may place them at significant risk.  

 

(12 January 2024)

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[1] UNCRC, Article 3.

[2] Ibid, Article 2.

[3] Borders, Citizenship and Immigration Act 2009 (legislation.gov.uk)

[4] ZH (Tanzania) v Secretary of State for the Home Department– Lady Hale at ¶23.

[5] United Nations Committee on the Rights of the Child, ‘Concluding observations on the combined sixth and seventh periodic reports of the United Kingdom of Great Britain and Northern Ireland’ (CRC/C/GBR/CO/6-7, 22 June 2023) §50(f).

[6] Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Rwanda for the provision of an asylum partnership to strengthen shared international commitments on the protection of refugees and migrants.

[7] Ibid, Articles 3(4) and 11.

[8] Helen Bamber Foundation, Asylum Aid and Humans for Rights Network, “Disbelieved and Denied: Children seeking asylum wrongly treated as adults by the Home Office,” April 2023, p. 4.

[9] Refugee Council, Identity Crisis, September 2022

[10] In the year ending September 2023, three-quarters of initial decisions were grants of refugee status, humanitarian protection or alternative forms of leave. Meaning when their applications were assessed 75% of individuals seeking asylum were found to be in need of protection. The grant rate has been over 70% since 2021. See How many people do we grant protection to? - GOV.UK (www.gov.uk)

[11] Ibid fn. 6. See for example definition of ‘Relocated Individual’ under Article (1), and Articles 3(3) and 10(1).

[12] See, e.g, The Children’s Society, What have I done? The experiences of children and families in UK immigration detention: Lessons to Learn, 2011, p. 33 (depicting a child’s experience of forced removal from the UK). 

[13] Safety of Rwanda Bill Explanatory Notes, ¶40.

[14] The Illegal Migration Act likewise removed the application of Section 3 HRA (§1(5)) and did away with many previously existing protections for children.