Detention is one of the most analysed topics in legal discourse. Detaining minors is an extraordinary step and in this country there is a very proud tradition which sets aside juvenile offenders’ trial processes in comparison to the manner and form in which proceedings are undertaken. This distinction is one of the great keystones of the proud traditions of British democracy and the English legal system.
In fact the UKBA itself accepts that under section 55 of the Borders, Citizenship and Immigration Act 2009 the Agency owes a statutory duty to children which includes the need to demonstrate:
• Fair treatment which meets the same standard a British child would receive
• The child’s interests being made a primary, although not the only consideration
• No discrimination of any kind
• Asylum applications are dealt with in a timely fashion
• Identification of those that might be at risk from harm.
Section 55 of the 2009 Act states that:
55 Duty regarding the welfare of children
(1) The Secretary of State must make arrangements for ensuring that
(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.
(2) The functions referred to in subsection (1) are—
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;
(b) any function conferred by or by virtue of the Immigration Acts on an immigration officer;
(c) any general customs function of the Secretary of State;
(d) any customs function conferred on a designated customs official.
(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).
(4) The Director of Border Revenue must make arrangements for ensuring that—
(a) the Director’s functions are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b) any services provided by another person pursuant to arrangements made by the Director in the discharge of such a function are provided having regard to that need.
(5) A person exercising a function of the Director of Border Revenue must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (4).
(6) In this section—
“children” means persons who are under the age of 18;
“customs function”, “designated customs official” and “general customs function” have the meanings given by Part 1.
(7) A reference in an enactment (other than this Act) to the Immigration Acts includes a reference to this section.
(8) Section 21 of the UK Borders Act 2007 (c. 30)(children) ceases to have effect
Notwithstanding the fact that the deputy prime minister, who is also the president of the Privy Council, had described the detention of children as a moral outrage it has emerged that the plan to stop the detention of children has been postponed from December this year to March next year.
The factual implications of the detention of children are that last year 1095 children were detained in UKBA removal centres (“IRCs”) because of no apparent fault of their own. Their loss of liberty under article 5 of the ECHR was attached to the immigration status of their parents.
The plight of children in connection to UK immigration law does not end with detention. Just from observation around the city of London it is possible to advance the argument that contrary to the provisions of the ECHR slavery, inhuman and degrading treatment does exist in connection to immigrant children even after six decades of the Convention.
The topic of UKBA detention is a massive subject and when I can’t shirk my blogging obligations to the rights of the child I will return to write about UKBA detention why it should be done away with.