The UK Border Agency (UKBA) Code of Practice on Children will not adequately protect children from the harm caused by immigration procedures.
The new Code of Practice for Keeping Children Safe from Harm, unveiled by the UK Border Agency on 6 January, was met with scepticism by refugee groups and practitioners. The Code follows the UK’s withdrawal of its reservation from the UN Convention on the Rights of the Child (CRC) which historically put the requirements of immigration control above the welfare of children. Now, children’s welfare must be a primary consideration in all the UKBA’s dealings with children, whether accompanied or not, whether asylum seekers or not.
There are however serious problems with the Code. The most important one is the fact that no immigration procedures affecting children have been changed. The Code seeks to limit and monitor the detention of children, but the lack of a statutory ban or time limit, and the fact that the Code envisages detention lasting more than 28 days despite recommending a 2- or 3-day limit, means that children will continue to be detained inappropriately and for excessive periods. Reports from HM Chief Inspector of Prisons have regularly slated detention facilities where children have been held, most recently in August 2008, when she expressed significant and continuing concerns about the lack of activity and the detention of children at Yarl’s Wood, the main detention centre for families with children, where inspectors found children with disabilities, who ought not to have been detained at all, large numbers of children detained for over four weeks, and ineffective and inaccurate monitoring, as well as inadequate education and after-school activities.
The Code has nothing to say about age testing procedures – a significant omission given the UKBA’s recently expressed interest in returning to discredited and unsafe methods such as X-rays – and what happens when immigration officials disbelieve a child’s claim to be under 18. It has nothing to say about the way children are prosecuted for arriving without immigration documents or for illegal entry. As the Refugee Council pointed out in response to an earlier draft, these are forms of harm inherent in immigration procedures themselves. The Asylum Process Guidance on children on the UKBA website, to be read with the Code of Practice, makes few concessions to children. Applications from children must be lodged in the same way as those from adults applying for asylum. Children of 5 and over are fingerprinted on screening, just as adults are (and even children under 5 are photographed). Children of 12 or over are required to report to their ‘case owner’ just as adults are.
The Code is also silent on the relationship between the immigration authorities and the family courts. Where the family court has determined, following hearings and evidence from the agencies dealing with the family, that a child’s welfare requires that he or she remain with a UK-based carer, will the UKBA respect that decision? As the Immigration Law Practitioners’ Association (ILPA) pointed out earlier, to reunite a child with an abusive parent on the steps of an aircraft which is removing both of them would violate UK child protection laws, but with nothing in the Code about respect for local authority or family court decisions, such a scenario remains possible.
The Code itself makes it clear that it creates no new or overriding duty which will interfere with the UKBA’s primary function, namely ‘to uphold the integrity of the immigration control system, and in doing so, to apply the immigration legislation, the immigration rules and the relevant policies of the Secretary of State’. The main thrust of the part of the Code dealing with unaccompanied asylum-seeking children is to ensure that the children are aware at all times that their application may be rejected, and that others dealing with them, such as local authorities, have the likelihood of rejection and removal from the country in mind. As ILPA comments, nowhere does the Code address the procedures, practices and rights of the child during the appeals process. The emphasis throughout is to try to make children understand and adapt to the processes that immigration control subjects them to, however harmful, rather than modifying or adapting those processes to meet the needs of children.
Download the: Code of Practice for Keeping Children Safe from Harm (pdf file, 140kb)