Where now for the campaign to end child detention?

Syd Bolton, Solicitor, Children’s Legal Centre*

*This is the text of the speech that Syd Bolton gave to the End Child Detention Now/Shpresa

Keep Your Promise campaign launch, Oxford House, Bethnal Green, London, 26th March 2011.

Thank you all for being part of this campaign and for inviting me to take part in this important event. On a day of united action across the UK against public sector cuts; against the loss of essential services and tens of thousands of jobs in the
public and voluntary sectors especially; we must not lose sight of the very close relationship between unemployment and hostility to migrants; between ever stricter border controls and the politics of insecurity. The free movement and privileges enjoyed by global corporations are in stark contrast to the restrictions, conditions and barriers placed in the way of families, their children and relatives, to enjoy their lives together in safety, dignity and with respect.

The use of immigration detention is an important cornerstone of the border policing mentality of not just the UK, but the bigger joint enterprise that is the European Union. It is a bitter irony that only a few weeks before Libya was bombed, Gaddafi’s government was one of Europe’s official frontier gatekeepers. Turning people back from Sub-Saharan Africa trying to reach safety in Europe.

I say all of this to place in context the continuing use of immigration detention for families with children.

Last year, the new coalition government announced it would end child detention. But it quickly became evident during the summer-long UK Border Agency (UKBA) detention review process that this was a measure that UKBA would not give up lightly, whatever the political intentions.

Call me naive but I had always understood that when a Minister made a public statement it was meant to be enacted by the civil servants, not undermined. But all summer, the UKBA made it plain that they were not willing to give up the power to detain children, as part of the policy of ending the detention of children. In the many discussions about how to end detention held with the UKBA over that review period, it was clear that the UKBA simply would not entertain the possibility of a major plank of its border control powers being removed.

Despite the political rhetoric and constantly asking the NGO sector to come up with alternative solutions – which we did, repeatedly – at the end of the process, the ultimate sanction of detention could not be taken away. The forceful views of the UKBA were made to such an extent that the bold and brave political statements made at the beginning of this new government’s tenure could not hold, and the Minister had to reframe his language and speak in a more equivocal voice, compromising with the UKBA on how far the ending of detention would be allowed to go.

The euphemisms abound, but the reality remains. Let us not buy into the spin that detention of children has been ended. As the UKBA said in their glossy presentations when this was announced just before Christmas, ultimately, as a last resort, pending “ensured return” a few families would continue to be detained but in much reduced numbers, for much shorter periods, in more suitable “pre-departure (secure) accommodation” (whatever this might turn out to be).

In other words, after all the hype, the UKBA has only agreed, after huge pressure from campaigners, international observers, the courts and child health experts, to move back to the position it had always claimed to be the case under its family detention policies and operation instructions; that immigration detention of families should only be used in exceptional circumstances and for the shortest period possible.

Statistics and a recent succession of high court cases have shown that those policies have not being followed and there remains a major
tension between child safeguarding and enforcement policies within the UKBA.

From a situation of the commonplace use of detention of families to one where it may be used sparingly, indeed exceptionally and with a potentially more transparent and accountable decision making and review process along the way is a hard won and significant victory, make no mistake. Only time will tell whether this actually happens in practice.

But it does not end child detention. The move simple re-brands detention. Other respected voices who during the review had rather pragmatically, rather than it seems on any principled basis, endorsed 72 hours detention at the end of the process, have now changed their minds publicly and described it simply as a repackaging exercise and called for an overhaul of the whole system.

This is not just our opinion. It is a fact that this new accommodation is detention, whether it is called pre-removal accommodation or not; whether it has a play area and no bars on the windows, whether after a risk assessment, families might be permitted to go out on day release or let their children go out with detention centre staff.

It is detention because the UKBA says so.

At a recent event to launch the new process, a senior Border Agency official said:

“legally it is detention, but it will look and seem totally different.”

And a UKBA fact sheet on pre-departure accommodation answers the question:

‘What rules will apply and under what legal power will you prevent families leaving?’ with the answer:-

‘Powers to require the family to remain at the accommodation are derived from Schedule 2 to the Immigration Act 1971. It will ultimately be operated in accordance with new Short Term Holding Facility Rules.’

So we are left with a new, potentially better decision-making process. Only as a last resort will detention be used, and the welfare of children is now supposedly central to the considerations of whether or not to detain. Where this is authorised, these conditions will satisfy statutory safeguarding and welfare standards.

These processes now need to be tested and scrutinised. Already they seem to be found wanting. The new family removals panel is not as transparent as it looks on paper and it seems like it will operate more like the Special Immigration Appeals Court panel, (the anti-terrorism court) where the subject in question does not get to take full part or to see all the evidence, deliberations and reasons. The family removals review panel itself does not seem to have relevant child welfare and health expertise and will not publish its detailed findings. It is predicated on how to remove, not whether to remove. It does not seem to have the best interests of the child at the heart of its considerations.

There has been a lot of criticism in the media recently of community and voluntary organisations choosing to work with the UKBA as part of these new processes, including the provision of welfare services in detention. I leave it to others to judge whether or not it is better for non-governmental organisations  (NGOs) to contract to work inside this system to ensure that child welfare standards are met, or best left to the usual private sector security companies and to local authorities.

Authorities who, like in Yarl’s Wood, always had difficulties retaining social work staff and balancing their own resources and interests with the challenges of meeting the welfare needs of children in detention.

Whether in doing so, the institutionalising culture of a detention environment, even with nice wallpaper and a garden compound, behind a secure perimeter fence, will over time affect the responses and attitudes of those responsible for
the safeguarding and welfare of children in that environment, remains to be seen. The institutionalisation of the prison warder and all those working in jails for long periods is well researched and documented.

A separate and, in my view, earnest discussion needs to be had about this kind of contracting, particularly in this climate of austerity. Shrinking funds make it increasingly tempting or, in some cases, necessary for charities to find funding wherever the opportunity arises. But there are always high risks in working within the machinery of state rather than holding it to account from the outside. Should
NGOs remain interested independent parties or become formal partners? What I do know is that our aims and objectives as charities should not become distorted by the opportunity that is presented, even where the intentions are good.

That is a choice that faces many not for profit organisations at the moment. Some may think that they can do it better than the private sector and will be motivated by the improvements they feel they can bring to bear on difficult and controversial policies and practices. Others may not be so cautious and careful. On this version of child detention, time and external scrutiny, including independent inspection and judicial oversight, will be the judge.

But whether detention is used against parents and their children held together, or whether a parent is detained and children and other family members are left isolated on the outside, whether children are supposedly free to come and go under escort, the facts and the legal position are undeniable. Children continue to be subject to detention and will suffer from its consequences, directly and indirectly.

Children will continue to suffer from the developmental and psychological damage inflicted on them, by being uprooted from the communities they have grown up in, made friends in, went to school in, were born in and want to live in.

It is not all bad news.

In late 2008 the UK ended its immigration reservation to the UN Convention on the Rights of the Child, making every child equal in law not just in the rhetorical assertion that “Every Child Matters”.

In 2009 the UKBA was required to follow statutory safeguarding duties to safeguard and promote the welfare of children in the exercise of all its functions.

These are major shifts in domestic law and the UK’s acceptance of its international legal obligations is to its credit. Nonetheless it is taking a long time to work through into practice, and the courts have found the UKBA slow and wanting in this regard.

Since the detention review started last year and the new scheme was proposed, the Supreme Court issued a truly landmark judgment on the best interests of children whose parents are subject to immigration controls. This ruling includes British Citizen children who cannot be removed or deported but whose parents might still be subject to removal, including detention and where this would result in the constructive deportation of their children.

The case of ZH (Tanzania) v SSHD recognises from the highest court in the UK, that the United Nations Convention on the Rights of the Child, is an integral part of UK immigration and asylum law and policy.

In particular the best interests of children must be “considered first in decisions affecting the child”, “must rank higher than any other”.

The judgement adds:

“It is not merely one consideration that weighs in the balance alongside other competing factors and where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing factors of
considerable force displace them.”

The principle extends not just to decisions to remove a child or their family but decisions to detain children under Immigration Act powers or to the separation of a child from a detained parent.

The Secretary of State has conceded in court, that any decision which is taken without having regard to the need to safeguard and promote the welfare of any children involved will not be in accordance with the law.

In other words, where the UKBA detains a child or separates a child from his or her parent(s) then a failure to show how the child’s best interests and welfare have been assessed and then taken into account will render the detention unlawful.

The “quality” of the detention centre and the length of detention may be relevant factors, but it will be insufficient just to say that it is more child-friendly, or that there is a now a child welfare provider in the accommodation centre. The needs and best interests of each and every child have to be properly assessed and considered when arriving at that decision.

The Supreme Court has said that the wishes and feelings of the child must also be taken into account. If the UKBA cannot show how they have done this in every single case, the decision is going to be flawed.

The Court of Justice of the European Union in Luxembourg has gone further still.

In March this year a Grand Chamber judgment in a case called ‘Zambrano’ – a Belgian welfare rights case – held that a child who is born or registered as a citizen of a member state of the European Union has all the rights of a European Citizen under the Treaty of Lisbon.

These include the right of children to have their parents care for them and to remain with them in the country of the child’s citizenship, so that as children they are able to enjoy their full European Citizenship  rights. This means a parent who is from a non EU country, irrespective of the parent’s immigration status, or lack of it, whether a failed asylum seeker or not, must ordinarily be allowed to stay with their citizen child.

In effect these families, including ones with British Citizen children, are no longer detainable. If there is no prospect of removal then to detain in these circumstances will, in my view, also breach the child’s European citizenship rights, as well as their human rights. Whilst the UKBA clings to its patched-up detention policies, the highest courts in the UK and in Europe are at long last recognising the fundamental rights of every child.

Whatever the particular conduct of a child’s parents in their own asylum or immigration history, the Supreme Court said profoundly in the case of ZH that:

“It would be wrong in principle to devalue what was in their best interests by something for which they could in no way be held to be responsible.”

In my view, the detention of children is one of the ultimate ways of devaluing their best interests.

Even if detention is not officially ended, justice and the rights of children demand that it should be and the courts may finally render it to be an obsolete practice to be consigned to an unenlightened and unacceptable part of our recent history.