Illegal Migration Bill Committee Stage, House of Lords, 24 May 2023

Local government would welcome discussions with government on potential impacts on councils of the Bill including:

1. accommodation, support and long-term planning for unaccompanied children
2. changes to the current asylum system including powers of detention and consultation on the resettlement cap.

Current context

Councils have a proud history of welcoming new arrivals, stepping forward at times of crisis to offer homes and support so families and individuals can build new lives in the UK. The Bill adds extra complexity to areas seeking to manage pressures on local services, community cohesion or community tensions as a result of asylum and resettlement accommodation. 

Councils are aware of current pressures in the system that the Bill is seeking to address. In advance of any implementation, there is a parallel need for joint planning to help ensure we can be ahead of the same pressures next year, based on realistic projections in terms of intake. This needs to take account of the impacts on local services of the streamlined decision-making process. 

We also continue to highlight significant concerns about capacity to accommodate unaccompanied children and call on the Government for support to expand capacity. We are also unclear on the practical implications of the Bill for unaccompanied children, including its interaction with the Children Act 1989 and the United Nations Convention on the Rights of the Child.

There also is a clear need for a cross cutting approach to all asylum and resettlement schemes which understands the cumulative impact on local areas. 

• We support the replacement of Clause 1 with the amendment clarifying that nothing in the Act shall require any act of omission that conflicts with the obligations of the United Kingdom under UN Conventions, including the UN Convention on the Rights of the Child. 
• We support amendments by Baroness Hamwee and Baroness Bakewell to clause 2 that would ensure that any limited leave to enter or remain given to an unaccompanied child under the immigration rules can be taken into account in determining whether that child has leave to enter or remain in the UK.
• We support proposed amendments to Clause 3 by Baroness Butler-Sloss and 5 by Baroness Hamwee which would ensure that an unaccompanied child who reaches the age of 18 is not removed unless it is in their best interests to do so.
• We support the proposed amendment to Clause 4 by Lord Dubs which ensures that unaccompanied children retain the right to make asylum and human rights claims. This again helps to avoid potential conflicts between the Bill and the United Nations Convention on the Rights of the Child that would need to be resolved by councils locally.
• We support the amendment by Lord Hope of Craighead to Clause 5 that this legislation should not operate retrospectively.

LGA view

• In requiring the removal of children as soon as they turn 18, it is not clear how the Bill is compatible with other legislation, in particular the Children Act 1989 and associated guidance. This stresses the importance of consideration of the wishes and feelings of the child, and the need to operate in their best interests. Guidance also requires councils to plan for permanence for children, including developing relationships and ensuring children have a sense of security, commitment and belonging. 
• We are also concerned that the Bill may be incompatible with the United Nations Convention on the Rights of the Child to which the UK is a signatory, in particular Article 3 (best interests of the child), Article 12 (respect for the views of the child), Article 22 (refugee children) and Article 39 (recovery from trauma and reintegration).
• These amendments will help to provide clarity to councils with statutory responsibilities for lone children and ensure that councils are not in the position of trying to assess what their obligations, roles and responsibilities are for children in their care given potentially conflicting legal requirements.
• We have supported ambitions to ensure legal routes for specifically for children to rech the United Kingdom to ensure their safety and wellbeing.

• We support the proposed amendments to Clauses 10 by Lords Scriven and German, which will limit the amount of time unaccompanied children can be detained in a short-term holding facility.
• We support the amendment to Clause 11 proposed by Lords German and Scriven, and Baronesses Chakrabarti and Lister of Burtersett, which would ensure that no person under the age of 18 is detained in asylum accommodation.

Given the other legislation referred to above, we support the amendments by Baroness Lister of Burtersett to ensure that protections against the use of force to effect detention and removal are in place for children and pregnant women.

LGA view

• As above, unaccompanied children have a right under the Children Act 1989 to live in suitable accommodation for their needs and any implementation of the Bill should be consistent with existing legislation.  As noted above, this would place councils in the position of trying to comply with two competing sets of legislation as they attempt to fulfil their duties towards children.
• It is important for children’s wellbeing that they are accommodated in appropriate accommodation for their needs therefore we support amendments that children, including those with their families, should not be detained in detention accommodation but instead should be supported in more specialist provision that can meet children’s needs. As also noted above, councils are acutely aware of the current shortage of suitable accommodation to meet those needs and we continue to call on the Government to support councils to expand placement capacity at pace.

• We support Lord Carlile of Berriew’s amendment that seeks to ensure that the Home Secretary’s powers over the accommodation of unaccompanied children in England do not apply retrospectively.
• We support the amendment to clause 16 from The Lord Bishop of Durham that seeks to limit the Secretary of State’s power to transfer a child out of local authority care and into accommodation provided by the Secretary of State, by providing that they may only do so where to do so is necessary to safeguard and promote the welfare of the child.

LGA view

• The Bill strengthens government’s powers to direct councils. Councils are concerned that they will be required to take lone children into care, or to stop caring for a child, without consideration of whether that direction is appropriate for individual children. 
• Councils are also concerned that they will be directed to accept responsibility for children (including large numbers of children in Home Office accommodation) without the ability to engage on or influence where these children are placed, and without consideration of local capacity to appropriately support those children including social care, health and education services.
• There is no recognition of pressures on individual councils or the need to ensure the appropriate placement of individual children in line with statutory guidance. We have also repeatedly highlighted the issue of a lack of sufficiency of placements for children in care, as have a wide range of other organisations and reviews. This clause fails to address the underlying challenges in the system. 
• The Bill does not take the opportunity to clarify who is the corporate parent of unaccompanied asylum-seeking children placed in hotels by the Home Office or commit to ending this practice, which the LGA has stressed the need for [1](Government must take action to end the crisis of unaccompanied children being placed in hotels | Local Government Association). Clarification on the corporate parent role is important to ensure clear accountability for the welfare and safety of all children.
• This is needed as a matter of urgency given anticipated rapid increase in arrivals over the summer and to inform current discussions on potential large sites use given the potential unsustainable impacts on local children services.
• If children are placed in Home Office accommodation, the legislation should clarify that this must be regulated accommodation in line with all other accommodation for children in care.
• Councils would welcome further discussion on key operational issues such as age assessment, reducing the risks of children going missing to avoid detention and removal or as a result of being trafficked, and clarifying the corporate parent role for children in detention. 
• Councils must be consulted on and able to influence the location of any Home Office accommodation for children to ensure the appropriateness of the location and capacity of local services to support children. If councils are not engaged in the decision, as has happened in previous hotel procurement, then it should be clarified that the Home Office will take responsibility for keeping those children safe and supporting their wellbeing.

• We support the proposed amendment by Lords Anderson of Ipswich and Hope of Craighead to Clause 55 which allows courts of judicial review to quash age assessment decisions on the basis of factual as well as legal error. We would support the transparency created by the requirement of publication of annual reports containing a summary of the scientific advice informing the designation of age assessment methods, as well as the number of (a) assessments carried out in the previous year and (b) cases where an assessment has identified a discrepancy between claimed and estimated age. 
• We also support proposed amendments by Baronesses Lister of Burtersett, Neuberger and Prashar to Clause 56 which ensure that it is set out in regulations that the refusal to consent to scientific measures of assessing age should not be taken to damage credibility, and remove the provision in the Bill that would allow regulations to set out that a person claiming to be a child is to be treated as an adult if they refuse to consent to scientific age verification. 
• We support the amendment to Clause 55 by The Lord Bishop of Durham and Baroness Lister of Burtersett that reinstate the right of appeal against age assessments in respect of putative children whom there is a duty to remove under the Bill.
• We support the amendment to Clause 55 by The Lord Bishop of Durham and Baroness Lister of Burtersett that removes a provision of the Bill that would prevent a judicial review challenge to an age assessment from serving as a barrier to the putative child’s removal from the UK. 
• We support the amendment by the Lord Bishop of Durham and Baroness Lister of Burtersett provide for regulations to be made under which certain putative children may be treated as adults if they refuse to consent to scientific methods of age assessment. This amendment provides that this may not occur if the child’s refusal to consent was reasonable in all the circumstances.

LGA view

• The Government appointed Age Estimation Science Advisory Committee has considered the use of biological methods of age assessment and made a number of recommendations to ensure this is as safe and effective as possible, though has also noted that “there may be many reasons why a UASC may choose not to give consent for biological age assessment that is not linked to concealment of chronological age”. Until further research has been undertaken to understand both the accuracy of such methods and the impact on children, including on their physical and mental wellbeing, we believe it is in children’s best interests to retain the right to opt out of biological testing where they wish to. Where doubt remains over a person’s age where they have refused biological testing, a social work-led assessment should be used to determine age for safeguarding reasons, as is currently the case.
• A recent Freedom of Information request to councils found that in 2022, 70 councils reported at least 867 children being identified in adult asylum accommodation as a result of inaccurate age assessments at port [2] (Disbelieved and denied: Children seeking asylum wrongly treated as adults by the Home Office, April 2023). This carries significant safeguarding implications for children where they are being placed with unrelated, unknown adults without access to the support that unaccompanied children are entitled to under the Children Act 1989. We therefore seek clarification as to how children will be safeguarded should the current clauses in relation to age assessment remain in the Bill.

The data below provides further detail on the current pressures with regards to councils support for lone children:

• At the start of September 2022 there were still more than 300 children accommodated in 5 hotels. 3,256 children have been housed in hotels between October 2021 and September 2022, with the average length of time spent in a hotel 16.34 days.
• As of 19 October 2022, 222 of these young people had gone, and remained, missing.
• At 31 March 2022, councils were caring for 5,570 UASC. This was an increase of 34 per cent (1,430) on the previous year (though this followed a large decrease of 18 per cent in 2020-21 which was likely caused by the pandemic). 87 per cent (4,870) were 16 and over (source). On the same date, councils were supporting 11,650 former UASC care leavers aged 17-21.
• Transfers via the National Transfer Scheme out of local authorities are as follows:
  • 2021 Q3 – 66 children transferred
  • 2021 Q4 – 296 children transferred
  • 2022 Q1 – 310 children transferred
  • 2022 Q2 – 392 children transferred
  • 2022 Q3 – 273 children transferred (source)

Colm Howard-Lloyd, Head of Public Affairs and Stakeholder Engagement

Email: [email protected]