changes to the immigration system that will affect children, explains Anita Hurrell, legal and policy officer at Coram Children's Legal
Centre.
The coalition government has brought in many measures that have had very significant consequences for the lives of people subject to immigration control. Particularly important have been the July 2012 changes to the immigration rules and the ending of immigration legal aid in April 2013. But the Immigration Act 2014, which was passed in May, is the first piece of primary legislation on immigration in this parliament.
It makes important changes to immigration and nationality law that will affect the rights of children.
Children's welfare
In recent years, there have been a number of important legal developments in relation to the best interests of children in the immigration context. Particularly significant was the passing of section 55 of the Borders, Citizenship and Immigration Act 2009, which placed a duty on the Home Office to exercise its immigration control functions having regard to the need to safeguard and promote the welfare of children in the UK. This finally put children affected by immigration control in the same position as children affected by other functions of public bodies and was a hugely positive step. Following this, there were important judgments from the highest courts on the way that a child's interests should be considered in immigration cases and the weight that should be given to them.
The new Immigration Act 2014 purports to do nothing that goes against the child welfare duty contained in section 55. Indeed, after pressure was put on the government during the passage of the bill, they agreed to reiterate the duty. Section 71 of the Immigration Act 2014 now states: "For the avoidance of doubt, this act does not limit any duty imposed on the Secretary of State or any other person by section 55 of the Borders, Citizenship and Immigration Act 2009 (duty regarding the welfare of children)."
However, the new law still raises concerns from a child rights perspective. Worrying provisions include those on private and family life rights under Article 8 of the European Convention on Human Rights, in which the government seeks to tell the courts how to consider Article 8 cases. Also of concern is the new concept of a "right to rent", which will be phased in from 1 December in Birmingham, Dudley, Sandwell, Walsall and Wolverhampton, and risks making undocumented families homeless.
Deportation cases
Another alarming provision means that a foreign national who has committed a criminal offence may be deported without having a chance to appeal the Home Office's deportation decision to the independent tribunal while they are still in the country. Instead they would only have the chance to appeal from abroad, which in many cases may be impossible. This change is extremely significant because what is very often at stake in such cases is the person's relationship with their child or children in the UK, including children who are British citizens. What may happen is that a child will lose their parent without there having been any judicial scrutiny of the deportation decision and its effects on the child's life.
Equally worrying is how this provision will affect foreign national young people in the criminal justice system. If a child who has indefinite leave to remain in the UK commits a criminal offence, they could have their leave to remain revoked and face deportation proceedings at the end of their sentence once they reach the age of 18.
They may have been in the UK since they were an infant and know no other home. They may have grown up in the UK care system. But the Home Office will in some cases be able to deport that young person without the case even going to court. To make matters worse, cases like this are no longer covered by legal aid.
It is not yet known exactly how these and other provisions will play out in practice and there is bound to be litigation. But it is already clear that this Immigration Act has the potential to threaten progress made on children's rights.
