Syd Bolton, Solicitor, Children’s Legal Centre*
*This is the text of the speech that Syd Bolton gave to the End Child Detention Now/Shpresa
Keep Your Promise campaign launch, Oxford House, Bethnal Green, London, 26th March 2011.
Thank you all for being part of this campaign and for inviting me to take part in
this important event. On a day of united action across the UK against public sector
cuts; against the loss of essential services and tens of thousands of jobs in the
public and voluntary sectors especially; we must not lose sight of the very close
relationship between unemployment and hostility to migrants; between ever
stricter border controls and the politics of insecurity. The free movement and
privileges enjoyed by global corporations are in stark contrast to the restrictions,
conditions and barriers placed in the way of families, their children and relatives,
to enjoy their lives together in safety, dignity and with respect.
The use of immigration detention is an important cornerstone of the border
policing mentality of not just the UK, but the bigger joint enterprise that is the
European Union. It is a bitter irony that only a few weeks before Libya was
bombed, Gaddafi’s government was one of Europe’s official frontier gatekeepers.
Turning people back from Sub-Saharan Africa trying to reach safety in Europe.
I say all of this to place in context the continuing use of immigration detention for
families with children.
Last year, the new coalition government announced it would end child detention.
But it quickly became evident during the summer-long UK Border Agency (UKBA)
detention review process that this was a measure that UKBA would not give up
lightly, whatever the political intentions.
Call me naive but I had always understood that when a Minister made a public statement
it was meant to be enacted by the civil servants, not undermined. But all summer, the
UKBA made it plain that they were not willing to give up the power to detain children,
as part of the policy of ending the detention of children. In the many discussions about
how to end detention held with the UKBA over that review period, it was clear that the UKBA
simply would not entertain the possibility of a major plank of its border control
powers being removed.
Despite the political rhetoric and constantly asking the NGO sector to come up with
alternative solutions – which we did, repeatedly – at the end of the process, the
ultimate sanction of detention could not be taken away. The forceful views of the
UKBA were made to such an extent that the bold and brave political statements made
at the beginning of this new government’s tenure could not hold, and the Minister had
to reframe his language and speak in a more equivocal voice, compromising with the
UKBA on how far the ending of detention would be allowed to go.
The euphemisms abound, but the reality remains. Let us not buy into the spin
that detention of children has been ended. As the UKBA said in their glossy
presentations when this was announced just before Christmas, ultimately, as a
last resort, pending “ensured return” a few families would continue to be
detained but in much reduced numbers, for much shorter periods, in more
suitable “pre-departure (secure) accommodation” (whatever this might turn out
In other words, after all the hype, the UKBA has only agreed, after huge pressure
from campaigners, international observers, the courts and child health experts, to
move back to the position it had always claimed to be the case under its family
detention policies and operation instructions; that immigration detention of
families should only be used in exceptional circumstances and for the shortest
Statistics and a recent succession of high court cases have shown that
those policies have not being followed and there remains a major
tension between child safeguarding and enforcement policies within the UKBA.
From a situation of the commonplace use of detention of families to one where it
may be used sparingly, indeed exceptionally and with a potentially more
transparent and accountable decision making and review process along the way is
a hard won and significant victory, make no mistake. Only time will tell whether
this actually happens in practice.
But it does not end child detention. The move simple re-brands detention. Other
respected voices who during the review had rather pragmatically, rather than it
seems on any principled basis, endorsed 72 hours detention at the end of the
process, have now changed their minds publicly and described it simply as a
repackaging exercise and called for an overhaul of the whole system.
This is not just our opinion. It is a fact that this new accommodation is detention,
whether it is called pre-removal accommodation or not; whether it has a play
area and no bars on the windows, whether after a risk assessment, families might
be permitted to go out on day release or let their children go out with detention
It is detention because the UKBA says so.
At a recent event to launch the new process, a senior Border Agency official said:
“legally it is detention, but it will look and seem totally different.”
And a UKBA fact sheet on pre-departure accommodation answers the question:
‘What rules will apply and under what legal power will you prevent
families leaving?’ with the answer:-
‘Powers to require the family to remain at the accommodation are derived
from Schedule 2 to the Immigration Act 1971. It will ultimately be
operated in accordance with new Short Term Holding Facility Rules.’
So we are left with a new, potentially better decision-making process. Only as a
last resort will detention be used, and the welfare of children is now supposedly
central to the considerations of whether or not to detain. Where this is
authorised, these conditions will satisfy statutory safeguarding and welfare
These processes now need to be tested and scrutinised. Already they seem to be
found wanting. The new family removals panel is not as transparent as it looks on
paper and it seems like it will operate more like the Special Immigration Appeals
Court panel, (the anti-terrorism court) where the subject in question does not get
to take full part or to see all the evidence, deliberations and reasons. The family
removals review panel itself does not seem to have relevant child welfare and
health expertise and will not publish its detailed findings. It is predicated on how
to remove, not whether to remove. It does not seem to have the best interests of
the child at the heart of its considerations.
There has been a lot of criticism in the media recently of community and
voluntary organisations choosing to work with the UKBA as part of these new
processes, including the provision of welfare services in detention. I leave it to
others to judge whether or not it is better for non-governmental organisations
(NGOs) to contract to work inside this system to ensure that child welfare
standards are met, or best left to the usual private sector security companies and
to local authorities.
Authorities who, like in Yarl’s Wood, always had difficulties
retaining social work staff and balancing their own resources and interests with
the challenges of meeting the welfare needs of children in detention.
Whether in doing so, the institutionalising culture of a detention environment,
even with nice wallpaper and a garden compound, behind a secure perimeter
fence, will over time affect the responses and attitudes of those responsible for
the safeguarding and welfare of children in that environment, remains to be seen.
The institutionalisation of the prison warder and all those working in jails for long
periods is well researched and documented.
A separate and, in my view, earnest discussion needs to be had about this kind of
contracting, particularly in this climate of austerity. Shrinking funds make it
increasingly tempting or, in some cases, necessary for charities to find funding
wherever the opportunity arises. But there are always high risks in working within
the machinery of state rather than holding it to account from the outside. Should
NGOs remain interested independent parties or become formal partners? What I
do know is that our aims and objectives as charities should not become distorted
by the opportunity that is presented, even where the intentions are good.
That is a choice that faces many not for profit organisations at the moment. Some
may think that they can do it better than the private sector and will be motivated
by the improvements they feel they can bring to bear on difficult and
controversial policies and practices. Others may not be so cautious and careful.
On this version of child detention, time and external scrutiny, including
independent inspection and judicial oversight, will be the judge.
But whether detention is used against parents and their children held together, or
whether a parent is detained and children and other family members are left
isolated on the outside, whether children are supposedly free to come and go
under escort, the facts and the legal position are undeniable. Children continue to
be subject to detention and will suffer from its consequences, directly and
Children will continue to suffer from the developmental and psychological
damage inflicted on them, by being uprooted from the communities they have
grown up in, made friends in, went to school in, were born in and want to live in.
It is not all bad news.
In late 2008 the UK ended its immigration reservation to the UN Convention on
the Rights of the Child, making every child equal in law not just in the rhetorical
assertion that “Every Child Matters”.
In 2009 the UKBA was required to follow statutory safeguarding duties to
safeguard and promote the welfare of children in the exercise of all its functions.
These are major shifts in domestic law and the UK’s acceptance of its
international legal obligations is to its credit. Nonetheless it is taking a long time
to work through into practice, and the courts have found the UKBA slow and
wanting in this regard.
Since the detention review started last year and the new scheme was proposed,
the Supreme Court issued a truly landmark judgment on the best interests of
children whose parents are subject to immigration controls. This ruling includes
British Citizen children who cannot be removed or deported but whose parents
might still be subject to removal, including detention and where this would result
in the constructive deportation of their children.
The case of ZH (Tanzania) v SSHD recognises from the highest court in the UK, that
the United Nations Convention on the Rights of the Child, is an integral part of UK
immigration and asylum law and policy.
In particular the best interests of children must be “considered first in decisions
affecting the child”, “must rank higher than any other”.
The judgement adds:
“It is not merely one consideration that weighs in the balance alongside other
competing factors and where the best interests of the child clearly favour a certain
course, that course should be followed unless countervailing factors of
considerable force displace them.”
The principle extends not just to decisions to remove a child or their family but
decisions to detain children under Immigration Act powers or to the separation of
a child from a detained parent.
The Secretary of State has conceded in court, that any decision which is taken
without having regard to the need to safeguard and promote the welfare of any
children involved will not be in accordance with the law.
In other words, where the UKBA detains a child or separates a child from his or
her parent(s) then a failure to show how the child’s best interests and welfare
have been assessed and then taken into account will render the detention
The “quality” of the detention centre and the length of detention may be relevant
factors, but it will be insufficient just to say that it is more child-friendly, or that
there is a now a child welfare provider in the accommodation centre. The needs
and best interests of each and every child have to be properly assessed and
considered when arriving at that decision.
The Supreme Court has said that the wishes and feelings of the child must also be
taken into account. If the UKBA cannot show how they have done this in every
single case, the decision is going to be flawed.
The Court of Justice of the European Union in Luxembourg has gone further still.
In March this year a Grand Chamber judgment in a case called ‘Zambrano’ – a
Belgian welfare rights case – held that a child who is born or registered as a citizen
of a member state of the European Union has all the rights of a European Citizen
under the Treaty of Lisbon.
These include the right of children to have their parents care for them and to
remain with them in the country of the child’s citizenship, so that as children
they are able to enjoy their full European Citizenship rights. This means a
parent who is from a non EU country, irrespective of the parent’s immigration
status, or lack of it, whether a failed asylum seeker or not, must ordinarily
be allowed to stay with their citizen child.
In effect these families, including ones with British Citizen children, are no longer
detainable. If there is no prospect of removal then to detain in these
circumstances will, in my view, also breach the child’s European citizenship rights,
as well as their human rights. Whilst the UKBA clings to its patched-up detention
policies, the highest courts in the UK and in Europe are at long last recognising
the fundamental rights of every child.
Whatever the particular conduct of a child’s parents in their own asylum or
immigration history, the Supreme Court said profoundly in the case of ZH that:
“It would be wrong in principle to devalue what was in their best interests by
something for which they could in no way be held to be responsible.”
In my view, the detention of children is one of the ultimate ways of devaluing
their best interests.
Even if detention is not officially ended, justice and the rights of children demand
that it should be and the courts may finally render it to be an obsolete practice to
be consigned to an unenlightened and unacceptable part of our recent history.
Dozens of supporters from across London and much further afield joined with End Child Detention Now and Shpresa Programme on Saturday 26 March to launch the “Keep Your Promise…” video and to hear speakers discuss the campaign to end child detention and the prospects for a genuine end to detention in light of the government’s unveiling of plans for new ‘pre departure accommodation’ for asylum seeking families near Crawley in W. Sussex and the upgrading of Tinsley House as a secure facility for ‘high risk families’.
Esme Madill who spoke about the history of the ECDN campaign and the new “Keep Your Promise…” initiative said that she was delighted with the turn-out – especially given the transport disruption as a consequence of the TUC March for the Alternative demonstration from which many of those attending had just arrived. Esme urged all those present to remember the often irreparable harm that arrest and detention does to children and their parents and explained why it was even more important in light of the government’s announcement that it intended to end child detention to keep Nick Clegg and David Cameron to their word. Over 1,700 postcards had been sent to No 10 Downing Street so far and many more have been requested by faith groups, voluntary organisations and concerned citizens across the UK.
Esme was followed by the Co-Director of the Children’s Legal Centre, Syd Bolton, who provided a fascinating insight into the government’s child detention review. He reported that despite the initial euphoria that child detention was finally coming to and end, many charities and campaign organisations had reluctantly begun to qualify their enthusiasm in the knowledge that the UKBA was intent on maintaining the power to detain children and families as an essential component of immigration control. However, the existence of Section 55 of the 2009 Borders, Citizenship and Immigration Act, and recent landmark judgments in the UK Supreme Court and the European Court of Human Rights finally appeared to give firm legal basis to the principle that the best interests of the child must take precedence over immigration controls in all but the most extreme circumstances.
James Fisher then spoke on behalf of Student Action for Refugees and told the audience why the campaign to end child detention had been such an important cause for student campaigners for refugee rights for many years. The beauty of the Keep Your Promise… campaign lay in its simple affirmation of the need for the government to stay true to its commitment, he said. Signing and sending a postcard was a simple act that James hoped thousands of students would give their support to in the weeks and months ahead. Manuel Nashi’s campaign video was a highlight of the evening – especially the interviews with young former refugees who had experienced detention at different times in their journey to the UK. It was only the latest manifestation of the extraordinary support that the Shpresa Programme had provided to the campaign and Shpresa’s director Luljeta Nuzi and Ella gave a moving account of the involvement of Shpresa’s young people, service users and volunteers in numerous petitions, vigils, hand printing sessions and demonstrations in support of the cause.
Finally, Rich Alexander from London NoBorders spoke about the UKBA’s plans to convert a former special needs school in Pease Pottage near Crawley into a new secure detention facility. He explained the background to the involvement of the hotel chain Arora which is seeking to move into the lucrative immigration detention facility industry and how the security for Pease Pottage would be provided by G4S, the global security giant which has been widely criticized for its management of Tinsley House and previously of the Yarl’s Wood Immigration Removal Centre. G4S could also be facing corporate manslaughter charges for the non-accidental death of immigration deportee Jimmy Mubenga on board a flight to Angola in October of last year. After a lively and informative question and answer session the evening ended with a spirited dance and poetry perfomance by the young people of Shpresa and a rousing chant of “Keep Your Promise…”
On Saturday 26th March at 5.00pm-6.30pm
London E2 6HG
Nearest Tube – Bethnal Green.
On 12 May 2010, Nick Clegg on behalf of the Liberal Democrat-Conservative coalition government announced that the immigration detention of children in the United Kingdom was to be brought to an end. On 16 December Mr Clegg described the detention of children as ‘a moral outrage’ and announced the closure of the family wing of the notorious Yarl’s Wood detention centre in Bedfordshire. He said no children would be detained over Christmas. BUT… Not only was a child detained on Christmas Day, as many as 100 children were detained by the UKBA in the first six months of the coalition government. The new plans for a more humane approach to dealing with families whose asylum claims have failed includes converting a special needs school into ‘pre-departure accommodation’ surrounded by a 2.8 metre security fence – a new detention centre in all but name. This is why End Child Detention Now has teamed up with the Shpresa Programme which supports Albanian speaking families in London to initiate the Keep Your Promise campaign to hold Clegg and Cameron to their pledge to end child detention now and forever.
- Esme Madill, End Child Detention Now
- James Fisher, Student Action for Refugees
- Syd Bolton, Children’s Legal Centre
- Luljeta Nuzi, Shpresa Programme
- Launch of the ‘Keep Your Promise…’ campaign video.
- Dancing from the young people of Shpresa
- Postcard signing
- Question and Answer Session on the new Home Office families’ removal programme and the ‘predeparture accommodation’ facility in West Sussex.
At a Conference in Birmingham today (Saturday 22 January), delegates from the Baptist Union, Methodist and United Reformed Churches will be asked to send postcards to Prime Minister David Cameron and Deputy Prime Minister Nick Clegg urging the coalition government to keep its promise on ending child detention.
The postcards were designed by the young people from Shpresa Programme, an Albanian Refugee Community Organisation in East London that has worked with ECDN to draw attention to the plight of children and young people in immigration detention. The Keep Your Promise campaign is a result of Shpresa young people expressing their concern that while the government has promised to bring an end to child detention, children will continue to be detained at Tinsley House, near Gatwick, at least until May 2011.
The Baptist Union, Methodist Church and United Reformed Church together with ECDN believe that the current alternatives to detention proposed by the Deputy Prime Minister fall a long way short of the commitment that he gave in May 2010. While welcoming the closure of the family detention facility at Yarl’s Wood, we are particularly concerned that children may continue to be detained with their parents prior to removal at a facility that has been condemned by several reports from Her Majesty’s Chief Inspector of Prisons.
Esme Madill, campaign coordinator for End Child Detention Now said:
‘The Keep Your Promise campaign is a reminder that the coalition government continues to detain children and families despite Nick Clegg rightly describing the practice as a “moral outrage”. We are also concerned that the alternative system proposed for dealing with the removal of refused asylum seekers still allows for the arrest and detention of children and families at Tinsley House near Gatwick. We call upon the government to keep its promise by passing legislation to ban the practice of detaining families prior to removal and to transfer the consideration of asylum claims away from the UK Borders Agency to an expert independent body whose decisions will not be linked to arbitrarily imposed removal targets.’
Rosemary Kidd of the Baptist Union of Great Britain said:
‘Churches, along with other faith groups, students and community organisations, have been campaigning to end the detention of children for immigration purposes for a long time. We hope that many people across the country will join in organising postcard writing events around the theme of Keep Your Promise to end
child detention now.’
If you or your organisation would like to send Keep Your Promise postcards please send an email to email@example.com indicating the quantity your require (in multiples of 50) and we will let you know the value of the postage stamps you need to send and the address to send your request.
Hundreds turned out in the warm sunshine on Saturday June 5th to hear speakers from Citizens for Sanctuary, Outcry!, Refugee and Migrant Justice, No-One is Illegal, Medical Justice, End Child Detention Now and former detainees urge the government to make good on its pledge to end child detention, to rule out the separation of families and all other inhumane alternatives and to treat asylum seekers with the respect and dignity they deserve.
The event was brilliantly organised by the SOAS Detainees Support Group and featured a wonderful dance performance and poetry recital by the children of Shpresa – an Albanian speaking refugee community organisation based in London, face painting, hand print making, a samba band and an amazing human dragon which led the carnival on a march through central London to Downing Street. At No10, Phil from SOAS DSG, Millie and Pamela and 11 year old May Beth handed letters addressed to David Cameron, along with hand prints and a petition calling on the government to release all families and children from detention immediately.