Coram Children’s Legal Centre welcomes the government scrapping child detention powers in the Border Security, Asylum and Immigration Bill, published today.
Powers to detain children without time limit were brought in with the Illegal Migration Act 2023, though had not yet been commenced. They included allowing the government to lock up children arriving in the UK alone.
In 2023, Coram Children’s Legal Centre worked with partners leading efforts to limit the child detention powers. We are now delighted to see them repealed. Babies and children do not belong in indefinite administrative detention and this draconian power has no place on the statute book.
The scrapping of the powers preserves the status quo of the Immigration Act 2014. This means unaccompanied children can only be detained for 24 hours in airport and other short-term facilities and children in families can only be detained for 72 hours or a week if personally authorised by the minister and in special facilities and with certain safeguards.
No parallel to the care system
Coram also welcomes the government scrapping powers for the Home Office to keep unaccompanied children out of the normal care system.
Powers under the Illegal Migration Act allowed the Home Office to directly accommodate these children when they arrived in the UK alone without families. This undermined the landmark Children Act 1989 and the care system that is there to protect all children.
The Home Office usurping these powers was especially controversial after the national scandal of hundreds of lone children going missing from seven Home Office-run hotels. Some of the children have never been found.
The idea of these children being outside the mainstream children’s care system was also found to be unlawful after a case brought by ECPAT UK.
Asylum system progress
More generally, Coram Children’s Legal Centre welcomes the repeal of the Safety of Rwanda Act 2024 and many other provisions in the Illegal Migration Act 2023, including the whole ‘duty to remove’ scheme. The UK’s adherence to the international rule of law is well served by getting rid of the previous government’s provisions on the European Court of Human Rights.
It is welcome, too, that measures to penalise young people who do not consent to scientific age assessment methods will be done away with.
Criminalisation of people seeking safety including children and trafficking victims
There are, however, aspects of the Bill that are concerning for children’s rights.
The Bill builds on an existing list of immigration criminal offences, including unauthorised entry. It will create a new offence if someone travels by boat and creates a risk of injury to another person.
Coram Children’s Legal Centre has already seen with existing criminal offences from the Nationality and Borders Act 2022 that vulnerable children and trafficking victims have ended up being wrongly prosecuted as criminals and smugglers.
Children we work with have been forced to steer a boat and then been charged with facilitation. They have been disbelieved about their age on the basis of visual assessments by border officials at ports and put into adult prison. The Children’s Commissioner for England has raised her serious concerns about this issue, saying:
Perhaps the starkest consequence for children wrongly assessed are those who are sent to an adult prison for entering the UK illegally. … My team recently visited HMP Elmley and met with some young people in this situation. Home Office guidance states that someone claiming to be a child should be treated as one unless ‘their physical appearance and demeanour very strongly suggesting that they are significantly over 18 years’. This was certainly not the case for the young people my team met, who appeared to be young, scared and confused. … An adult prison is no place for a child to be.
It is imperative that the effort to target smugglers does not result in the criminalisation of people seeking safety, including victims of trafficking and including children travelling alone. This would undermine the policy intention.
The Home Office must also act urgently on the serious safeguarding concern that is the number of putative children ending up in the adult system. They collect no proper data, but Helen Bamber Foundation and others found over 1300 wrongly assessed children in an 18-month period alone.
Some further concerns
Other concerns also present themselves.
In relation to detention the government has cemented in diminished judicial oversight of what counts as a reasonable period to be deprived of your liberty when facing removal from the UK. This was one of the limited parts of the Illegal Migration Act that has already been brought into force.
It also seems to want extra powers to detain people who have served criminal sentences while considering whether to deport them. This includes young people in youth offender institutions. We are concerned because the system already allows for indefinite immigration detention and it is already foreign national prisoners who spend the longest periods detained. In our work we see this affect young people who have grown up in the UK, whom observers have described as ‘more British than foreign’, some of whom have grown up in care – with the state that is their corporate parent then seeking to exile them.
Reductions to the protections afforded to victims of modern slavery have also been kept from the Illegal Migration Act. The Bill leaves in place a modern slavery regime weakened through the Nationality and Borders Act 2022. It is the repeal of some of the 2022 provisions that we would like to raise during the passage of this bill for the sake of protecting trafficked child and young people.
Also retained in the Bill and beyond is the concept of ‘inadmissibility’ – the idea of not accepting a person’s asylum claim in the UK because the Home Office believe they could have claimed asylum in another country. If the Home Office considers an asylum case suitable for inadmissibility action it will not substantively consider the asylum claim and instead refer it to the Third Country Unit team.
No data on inadmissibility is available for 2024 but in 2023 only one single inadmissibility decision was served despite 31,537 people being ‘identified for consideration on inadmissibility grounds’.
The Labour government reissued the Home Office inadmissibility guidance in August 2024, suggesting that whilst they have ditched inadmissible asylum claims being sent to Rwanda, they support inadmissibility as a concept. As they process asylum claims at pace at the moment, it is unclear how many people, if any, are being referred to the Third County Unit, still less which third country would accept these people’s return.
Unaccompanied children are exempt from inadmissibility action. We would like to see the inadmissibility guidance amended to confirm that anyone who arrived as an unaccompanied child will remain unsuitable for inadmissibility action. At any time when they theoretically could have claimed asylum in another country, they were a minor.
Age disputed young people whom the Home Office treats as adults are subject to the policy, raising again the safeguarding problem of routing someone as an adult in the asylum system when they say they are a child – simply on the basis of a border official looking at the person.
We worry in particular about Albanian children and young people, including those who have been trafficked, when Albania is seen as a country whose nationals cannot make valid asylum and human rights claims. This is particularly concerning given how many Albanian children and young people are referred into the National Referral Mechanism as potential victims of trafficking.
Conclusion
We look forward to continued engagement with the government on protecting children in the asylum and immigration system including unaccompanied children who arrive in the UK alone.
We welcome the significant step forward made today for these children’s rights and look forward to the potential for further strides forward during the passage of the bill.
