The Home Office has introduced a new way of dealing with the return of families from the UK. It is called the ‘family return process’. If it is faithfully implemented by staff on the ground (a big ‘if’), it represents a massive improvement on the previous approach.

The main policy document is Chapter 45 of the Enforcement Guidance and Instructions. It begins by setting out key principles:

• The new process must take full account of our duty to have regard to the need to safeguard and promote the welfare of children in the UK in accordance with our statutory and international obligations.
• The new process must treat families with children humanely and with compassion.
• Independent expertise should be brought to bear at the most difficult stages of the process.
• Families with no legal right to be in the country need to leave.
• Parents should have the opportunity to make choices about the manner and timing of their departure.
• The new approach must be affordable.

The emphasis on the duty to safeguard and promote the welfare of children is very welcome, as is the new escalation process, consisting of three stages:

1. Assisted Return – We will ensure that families have a dedicated Family Return Conference to discuss future options and the specific option of assisted return.  We will examine how best to bring strong family engagement skills to bear  at these conferences and when engaging families throughout the process.
2. Required Return – We will give families who do not choose to take up the offer of assisted return at least two weeks’ notice of the need to leave the country and the opportunity to leave under their own steam via a self check in return without any enforcement action.  This extended notification period – up from 72 hours – will ensure that the family can prepare properly for their return and give them time to raise any further issues or seek further legal redress.
3. Ensured Return – Only once the new assisted and required stages have been exhausted, will we consider enforcement action: our aim is for families to depart before reaching this stage of the process.  An independent Family Returns Panel will help to ensure that individual return plans take full account of the welfare of the children involved.

This is a very welcome change from the previous ‘do not pass go’ approach to dawn raids and detention as a first resort, which has been very heavily criticised by campaigners and the courts.

There is some interesting material exhorting UKBA staff to consider the wishes and feelings of affected children, which is very much in line with what Baroness Hale says at the end of her judgment in ZH (Tanzania):

Case Owners must take account of the views of any children likely to be affected by a decision of the UK Border Agency. Provided they are able and willing to do so properly, the role of representing those views to UKBA should be performed by the child’s parent(s), or any other accompanying adult who has parental responsibility for the child.

However, the UK Border Agency should not assume that the best interests of a child, on the one hand, and those of its parents (or any adult with parental responsibility for the child), on the other, will be the same. Where those interests are not aligned, appropriate steps must be taken to elicit and assess the child’s views, as well as those of the parent(s) or any other adult with parental responsibility for the child.

There is still basically nothing on appeals and how or whether children should be questioned by a Presenting Officer. This is a real lacuna, in my view. The view of UKBA seems to be that the Immigration Judge can be expected to police hearings, but experience shows that this is an inadequate safeguard.

A new Independent Family Returns Panel has also been created to advise UKBA on family cases:

The purpose of the Panel is to provide independent advice to the UK Border Agency on the method of removal from the UK of individual families when an ensured return is necessary. The advice provided by the Panel will help to ensure that individual return plans take full account of the welfare of the children involved and that the UK Border Agency fulfils its responsibilities under section 55 of the Borders, Citizenship and Immigration Act 2009.

The Panel will publish an annual report on the advice it has given, including information on any cases where the method of return differed from that advised by the Panel.

The Panel will also consider the overall handling of families who are denied entry to the UK at the border to assess whether detention in such cases is being kept to a minimum.

The initial membership looks to be high powered and well qualified, although I seem to remember Dr John Keen from an odd memo he had written for UKBA several years ago about psychiatric evidence which Presenting Officers started to misuse for a time.

A host of related policy documents have also been posted to the UKBA website, including:

• A new Asylum Policy Instruction on Processing Family Cases
• A new webpage about the Independent Family Returns Panel
• A pdf document entitled Independent Family Returns Panel: how it will work
• A document on transitional arrangements for existing cases

The proof of a pudding is in the eating. Senior figures at UKBA and the Minister himself seem very serious about this new process and the policies described above represent a serious attempt to enforce cultural change on UKBA. It would be welcome if we could see a similar all-out effort to improve decision making in family cases before the removal stage is reached. At the moment there are some woeful decisions still cropping up where no consideration at all is given to the effect of removal on one of their parents on affected children.

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