Unduly Harsh? Children's Rights and Parental Deportation

The research will be the first detailed socio-legal investigation into the effects of the UK's deportation policy and practice on children.
Deportation is a serious legal measure imposed either on those who have been convicted of a criminal offence and sentenced to at least 12 months in prison or where deportation is 'conducive to the public good' (s.32(5) UK Borders Act 2007).
In 2022, 2,972 foreign nationals who had committed criminal offences were removed from the UK (Home Office 2023), a significant proportion of whom will have children. A parent sentenced to less than four years in prison can successfully resist deportation if they can establish that it would be 'unduly harsh' both to require their child to move with them and also for their child to be left behind. A parent sentenced to at least four years can resist deportation by demonstrating 'very compelling circumstances' (s.117C NIAA 2002). These tests are extremely difficult to meet, despite the fact that deportation is lifechanging for children, potentially involving permanent separation from a parent, spending formative years without face-to-face contact, being taken into care or moving to countries of which they have no prior knowledge.
The general legal obligation to 'safeguard and promote' children's welfare in immigration decision-making (Borders, Citizenship and Immigration Act 2009, s.55) means that a welfare assessment is required, but without an independent or rigorous assessment mechanism in place. A preliminary pilot (Yaqub, Stalford, Woodhouse and Griffiths, forthcoming 2023) has revealed that in most cases assessments are wholly inadequate. The Home Office decision-maker assesses welfare based on evidence that the family puts forward. Many families do not have access to any legal advice. The decision maker does not seek out further information and routinely makes decisions without knowledge of children's views, wishes and feelings, health, development, education and vulnerabilities.
This approach is in stark contrast to other family justice proceedings, where assessment of children's welfare is compulsory, comprehensive, individualised and independent.

The aims of the PhD research are:
1) to obtain empirical evidence regarding the impacts of parental deportation on children; and
2) to improve policy, process and practice on child welfare assessments in the context of deportation.
To achieve these aims, the project has three main objectives:
1) To conduct a comprehensive legal, policy and practice review of the extent to which decision-making relating to deportation reflect international and domestic legal obligations (e.g. UN Convention on the Rights of the Child).
2) To gather detailed qualitative evidence regarding the deportation decision-making process and its aftermath.
3) To identify children's rights-based approaches to parental separation in other contexts (e.g., criminal justice, family justice and extradition) and jurisdictions (e.g., Italy Sweden; Canada; New Zealand) and consider how these can be brought to bear on UK deportation proceedings.
Research Questions
Research questions include:
1. How does the threat/reality of parental deportation affect children?
2. How do factors such as the children's age, socio-economic background, ethnicity, health/special needs, the length and conditions of separation, involvement of other care-givers, and the quality and opportunities for contact affect experiences of and decisions relating to deportation?
3. To what extent are children's welfare and rights reflected in deportation processes? How do decision makers approach children's best interests? How are children's views captured? What is the independence and experience of professionals involved?
4. How do legislative reforms (particularly relating to immigration, Brexit and the proposed Bill of Rights) recognise and accommodate children's welfare and rights in this context?