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Author: Sam Nelson

New Immigration Plan Abandons Children’s Rights and Protections

12 May 2021
Sam Nelson
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Categories: News

12 May 2021

The proposed new immigration plan by the UK Government will trample on the rights of some of the most vulnerable children in Northern Ireland, breaching international obligations, domestic laws and devolved matters.

The changes depart from a range of international obligations and standards such as the 1951 Refugee Convention, the European Convention on Human Rights, the UN Convention on the Rights of the Child (UNCRC) and the Council of Europe Convention on Action against Trafficking in Human Beings. They contradict a number of domestic laws, including the Borders Citizenship and Immigration Act 2009 and the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015. Significantly, for Northern Ireland, the plan also encroaches on devolution; trampling powers held by a number of NI Executive departments, statutory bodies and the courts.

This is the analysis of specialist immigration solicitors within the Children’s Law Centre. The Children’s Law Centre’s immigration solicitors provide advice in relation to looked after children who are in the care of social services and whose immigration status is insecure. They also advise and represent the vast majority of unaccompanied asylum-seeking children (UASCs) in Northern Ireland, working with the Health and Social Care Board, all five Health and Social Care Trusts in Northern Ireland and Barnardo’s Independent Guardian Service. The team within the Children’s Law Centre holds extensive experience in representing unaccompanied asylum-seeking children who have been subject to the asylum application, National Referral Mechanism and other immigration application processes.

What is the New Plan for Immigration?

The proposed plan includes a number of major changes including:

  • A two-tiered system for people arriving in the UK.
  • The introduction of temporary protection status.
  • Significant changes to processing procedures.
  • Changes to referral mechanisms.
  • New enforcement methods.
Download the Children’s Law Centre’s response to the ‘New Plan for Immigration’

Many of these new changes will hit children the hardest, including separated children, UASCs and the children of asylum-seeking families. The result will see the diminution of children’s rights, including safeguarding rights and the legal child protection framework. Traumatised children will be put at risk of abuse, neglect and destitution, as well as a heightened risk of trafficking and re-trafficking.

The Watering Down of Child Protection and Safeguarding Duties

The new plan, if implemented, will create a number of new bodies with a range of powers. One of the most significant in relation to children is the National Age Assessment Board (NAAB). Where the primary duty of age assessments, currently carried out by social services, is to protect children, the NAAB will focus on immigration control. The Children’s Law Centre, and a wide range of community and civic organisations believe this is going to have a devastating impact on the well-being of children. It will dramatically increase the risk of vulnerable and traumatised children being held in detention centres, instead of getting the support they need for social services. The NAAB also opens the door to dubious age assessment methods that are entirely opposed by medical professionals and the UN High Commissioner for Refugees.

Another significant change will include a new ‘one-stop’ process that will curtail appeal rights by requiring frightened and traumatised children to immediately reveal the totality of abuse and harm they have endured. This is going to have a number of significant implications for UASCs in particular by introducing cut-off points around entitlements to protection. With many UASCs being extremely traumatised, it can often take time for them to ‘open up’ about their experiences of trafficking and abuse. This could now have implications for their access to protections. Excluding children from entitlement to safeguarding and protection from abuse is inhumane and a clear breach of Article 3 of the UNCRC and section 55 of the Borders Citizenship and Immigration Act 2009.

The proposals to withdraw financial support for asylum seekers who are deemed by the Home Office to have ‘failed’ to gain status is also deeply worrying, signaling a system of enforcement driven by the starvation and destitution of children.

Then there are additional plans seeking to erode protections for stateless children and raising the standard of proof for persecution. It is also alarmingly unclear whether detention for non-compliance with immigration rules will apply to children, or that separated children and UASCs could be placed in the newly expanded asylum estate when they turn 18. This all paints a bleak picture for the shift towards removing rights and protections from seriously vulnerable, traumatised and at-risk children.

The Heightened Risk of Trafficking and re-Trafficking

Rather than any pretence of streamlining the immigration process, it is clear to everyone outside the Home Office that the new plan will heighten the risk of trafficking and re-trafficking of children. By raising the ‘reasonable grounds’ threshold for sign-posting a child to be the victim of trafficking, children are being placed at risk of exploitation by preventing them from accessing necessary protection and support.

Separated children and UASCs may also, by the nature of their journey, be eligible for no more than temporary status under the new changes. This is due to the lack of a legal route for children to reunite with family members, described as a ‘blanket prohibition’ in the UK. This already drives vulnerable children towards trafficking, but failure to gain full status after arrival would heighten the risk of exploitation even further.

The plan completely fails to address this risk to children entering the UK. This is not a small number of vulnerable children either. Between 2010 and 2018, over 10,000 separated and unaccompanied children were granted asylum or some other form of protection in the UK. Rather than looking at how these children can be protected, the plan could be viewed as an attempt to close off the route altogether by increasing the risk of exploitation or detention of vulnerable children.

The Encroachment on Devolution

For Northern Ireland, the plan also encroaches on transferred matters under the devolved settlement. The creation of the NAAB in itself seems to ride roughshod over duties to protect children under NI law. In Northern Ireland, Social Services have a duty to conduct age assessments for the purposes of assessing what duties are owed to children under The Children (Northern Ireland) Order 1995. However, the NAAB attempts to supersede this legislation and create a new process for conducting age assessments based on border control.

The new plan for immigration also looks troubling in its approach to trafficking. Again, trafficking is not a reserved matter, it is devolved. The identification and protection of victims, and the prevention of trafficking, are duties that fall to the Police Service of Northern Ireland, the Public Prosecution Service, the various Health and Social Care Trusts, the Independent Guardian Scheme and the Northern Ireland Court Service. All issues that fall under the control of the Executive.

A Dubious Consultation Process

Finally, it is unclear or perhaps even unlikely that the consultation process for the new immigration plan fulfilled legal requirements. With a lack of detail often apparent in the proposals, a lack of time for respondents to properly complete their responses and a closed process around the opportunity to respond, meaningful engagement was significantly curtailed. A fait accompli presented to respondents.

There is almost universal opposition to the majority of the plans. This was clear throughout the consultation process. It is now down to the UK Government to engage meaningfully with the submissions that are received and to take them on board before any new legislation is introduced.

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‘Build Back Better’ with Children at the Heart of a Bill of Rights

28 April 2021
Sam Nelson
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Categories: News

29 April 2021

A Bill of Rights, with the inclusion of specific children’s rights, underpinned by the UN Convention on the Rights of the Child (UNCRC), could be transformative for children in Northern Ireland. It holds the possibility to address decades of failure for our children and young people, creating a framework for a brighter future.

Watch the Children’s Law Centre present evidence to the Ad Hoc Committee on a Bill of Rights

The list of issues facing children in Northern Ireland was recently highlighted in an NGO stakeholder report to the UNCRC Committee. The report illustrated how decades of systemic failure around children’s rights have had a devastating impact on children’s lives, with COVID-19 further exacerbating problems. However, a Bill of Rights for Northern Ireland would provide the perfect opportunity to build back better for children and wider society.

After presenting evidence to the NI Assembly’s Ad Hoc Committee on a Bill of Rights, Children’s Law Centre Director, Paddy Kelly, said:

“At the Children’s Law Centre, we firmly believe that a Bill of Rights for Northern Ireland could provide a new dawn for children here. It could build on general rights protections in the Human Rights Act by incorporating child specific rights as laid out by the UNCRC, rights the UK has already signed up to but remain unenforceable.

“We could see age discrimination legislation finally enacted. It could give a voice to children in care, and it could protect children from harm. Every child should have the opportunity to reach their full potential. A Bill of Rights, with specific child rights provision, could achieve that.”

Read our written briefing to the Ad Hoc Bill of Rights Committee

The Children’s Law Centre’s Director continued: “There can be no doubt that children’s rights in Northern Ireland have fallen behind and children have come to harm because of this. The results are plain for everyone to see over the past year, where Covid has exposed a weak framework of protections. There could be no better way to begin building back better than by strengthening the rights protections for our future generations.

“We have the blueprint. The UK is already a signatory to the world’s most celebrated and most complete statement on children’s rights ever produced, containing civil, political, socio-economic and cultural rights. Let’s prove our commitment to these principles, and to our children and young people, by incorporating the UNCRC in to law through a Bill of Rights for Northern Ireland.

“Where we’ve fallen behind in the past, let’s now lead the way.”

Notes: The Children’s Law Centre would like to thank Ms Moyne Anyadike-Danes for joining Paddy Kelly in presenting to the Ad Hoc Committee on a Bill of Rights. The Children’s Law Centre are privileged to have worked closely over many years with Ms Anyadike-Danes in the vindication of children’s rights. She is one of the leading children’s law experts in the jurisdiction. We would also like to acknowledge the assistance of Ms Anyadike-Danes and her colleague Junior Counsel Nick Scott BL in the preparation of CLC’s written submission to the Ad Hoc Committee.

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Education Authority Must ‘Grasp Opportunity’ for Meaningful SEND Reform

21 April 2021
Sam Nelson
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Categories: News

21 April 2021

The Children’s Law Centre has urged the Education Authority (EA) and the Department of Education to grasp the opportunity for meaningful improvements to the special educational needs and disability (SEND) process. The briefing comes at a time when the EA is conducting an internal improvement plan, including input from key stakeholders. It also follows shortly after the Children’s Law Centre submitted a critical response to draft SEND code and regulations.

Watch the committee briefing session

Read the briefing paper

In a briefing to the NI Assembly Education Committee, a number of key areas were identified to ensure improvements are meaningful and achieves positive outcomes. This included the need for meaningful consultation with children, their parents and carers. Other issues raised included the need to focus on early intervention and improve primary decision making, in the knowledge that over 97% of SEND Tribunal appeals achieve a successful outcome.

Rachel Hogan, the Children’s Law Centre SEND expert said: “The failings in the system have been largely operational, rather than caused by legal deficiencies. There is a robust legal framework around SEND – compliance is key. The EA and the Department must grasp this opportunity for improvement. It should be meaningful and must benefit those who are impacted by it – children.

“The SEND framework is there for the children & young people who need it. When will their voice be heard? How will they be empowered to participate in driving improvements & monitoring outcomes? This is a key concern if we want to make meaningful improvements. If we listen to those who are impacted – namely children, their parents and carers – then we can go a long way to providing better solutions.

“Those solutions must include a process for identifying unmet need, improving primary evidence-based decision making and a cultural shift in how we treat children with special educational needs and disabilities.”

Chief Constable criticised for spit hoods roll-out in defiance of policing board

4 March 2021
Sam Nelson
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Categories: News

04 March 2021

The Children’s Law Centre, Amnesty International, CAJ and Include Youth wrote to Doug Garrett, chair of the Policing Board, ahead of their meeting on Thursday 4 March, to ask the Board what steps they are taking to ensure their clear recommendation that all spit hoods by withdrawn by the end of 2020 is followed.

In November 2020, the Northern Ireland Policing Board recommended their immediate phasing out in its report, Review of the Police Service of Northern Ireland (PSNI) Response to Covid 19.

Instead, PSNI Chief Constable Simon Byrne has started distributing spit hoods to 4,000 additional police officers.

New figures show that, to date, the PSNI has used spit hoods 95 times. They were used on children (aged 10 to 17) eight times.

In 81% of cases (68 out of 84 incidents) of their use by the PSNI in 2020, spit hoods were used on people with disabilities.

The figures have come to light in a document published as part of a PSNI equality impact assessment launched this week, almost a year after the introduction of the devices.

Patrick Corrigan, Northern Ireland Programme Director of Amnesty International, said:

“The decision to roll out spit hoods, rather than withdraw them from use as advised by the Policing Board, is shocking.

“It is disturbing that in more than eight out of ten incidents, the PSNI has used spit hoods on people with disabilities and, on eight occasions, on children.

“The Chief Constable rushed to deploy spit hoods without evidence that they are effective in preventing the transmission of Covid-19. Now he is doubling down on that flawed decision, in outright defiance of the Policing Board.

“Placing a hood over someone’s head is a significant use of force and one that raises key concerns over cruel and degrading treatment, as well as serious potential health risks.

“These devices must be withdrawn from use, as called for by the Policing Board.”

Paddy Kelly, Director of the Children’s Law Centre, said:

“The Children’s Law Centre are extremely concerned that eight spit and bite guards were applied to children during the last year. In the cases of one 16 year-old and one 15 year-old, two spit and bite guards were applied during the same incident. This use of force must have been a frightening experience for these children.

“Their use on children is even more concerning given that children who come in contact with police are more likely to have a disability, mental ill-health or a learning disability. A police officer using a spit hood on a child cannot know if a child has a learning disability or suffers from asthma.

“In the light of medical evidence that the use of spit and bite hoods may increase the risk of Covid-19 infection to both police and members of the public, there can be absolutely no justification for their use on children. Spit and bite guards should be withdrawn in compliance with the Policing Board’s report of November 2020.

“We and other civil society organisations have now written to the Policing Board to ask them what steps they are taking to ensure their clear recommendation that all spit hoods by withdrawn by the end of 2020 is followed.”

Stop & Search Highlights ‘Systematic Targeting’ of Children & Young People

2 March 2021
Sam Nelson
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Categories: News

02 March 2021

Children and young people are being systematically targeted through the disproportionate use of stop and search powers in Northern Ireland. New statistics have revealed that children between the age of 13 and 17 make up only 6% of the population but account for 12% of all stop and searches in Northern Ireland, with rates reaching even higher in areas of deprivation. This reflects a continuing trend.

The disproportionate use of stop and search powers on children and young people is also shown to be hugely ineffective, with only 4% of stop and searches of 13 to 17 year olds leading to arrest. This is twice as ineffective when compared to other age groups and questions if the use of stop and search in many cases was appropriate and legal.

Claire Kemp, Policy Officer at the Children’s Law Centre said:

“These statistics yet again demonstrate a systematic targeting of children and young people with the ineffective use of stop and search powers. This is a continuing trend and is deeply troubling. The evidence would suggest that this is a policy decision on the part of the PSNI.

“When dealing with children and young people, the PSNI should be taking additional caution when using stop and search powers. Instead there is a very clear trend suggesting that children and young people are being targeted because of their age. They are more likely to be stopped, but this is less likely to lead to arrest.

“The practice is disproportionate and ineffective, but it goes even further than that. In areas of high deprivation, the rates are even more worrying and severely undermines children and young people’s confidence in the police. In the end, this has a negative impact on the safety and protection of children and young people who make up around 12% of all victims of crime. These young people rely on the police, but the disproportionate and inappropriate use of stop and search powers has the effect of making young people less trusting of police and therefore less likely to turn to them for help, placing them more at risk.”

If you want to know more about your stop and search rights, just ask REE, our legal advice bot for children and young people aged 13 – 17 at www.reerights.com. You can also request to speak to a live legal adviser.

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