In April the US attorney general Jeff Sessions warned of a ‘crisis’ in the number of illegal immigrants entering the US along its south-west border. Sessions directed state prosecutors to prosecute all illegal entrants, stating: ‘If you are smuggling a child then we will prosecute you, and that child will be separated from you as required by law.’ This policy should not have come as a surprise to Republican voters as Donald Trump had repeatedly warned of his intention to crack down on illegal immigration. An inevitable consequence of a ‘zero-tolerance policy’ was the separation of children from their families and their subsequent detention.

Pursuant to this presidential policy, more than 2,000 children of illegal immigrants were separated from their parents and placed in detention facilities in May and June by US border agents. Despite strict controls on access to these facilities, news began to leak about the full horrors of the implementation of Trump’s child separation policy. The holding facilities, described in some US media reports as ‘cages’, met with international condemnation. Inadequate records of the children and their parents made it impossible for some parents to maintain any contact with their children who are naturally traumatised by the enforced separation.

Pope Francis called the policy ‘immoral’, Justin Trudeau called it simply ‘wrong’, and even the far-right French xenophobe Marine Le Pen said she was ‘opposed to a procedure that separates parents and children’. The UN Human Rights Council was unrestrained in its criticism: ‘The thought that any state would seek to deter parents by inflicting such abuse on children is unconscionable.’ The US left the Human Rights Council shortly after this, with ambassador Nikki Haley responding in typical fashion – instead of trying to defend the indefensible, she called the criticism ‘hypocritical’ and pointed to other countries who had acted in a more morally reprehensible way.

During a Parliamentary session on 20 June, prime minister Theresa May described the policy as ‘deeply disturbing’, and ‘wrong’, adding: ‘This is not something that we agree with, this is not the United Kingdom’s approach.’

The UK’s policy on the treatment of immigrant families is based on article 8 of the European Convention on Human Rights – the right to respect for private and family life, which states: Everyone has the right to respect for his private and family life, his home and his correspondence… There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

Home Office guidance Immigration Returns, Enforcement and Detention General Instructions states: ‘Where children are involved, your primary consideration must be their best interests’, and that ‘separating families for detention and removal purposes must always be justified as being necessary and proportionate, and must have regard to the need to safeguard and promote the welfare of any children concerned’.

The policy prohibits separation of children from parents in some circumstances: if the parent is a nursing mother; if the consequence of the removal is that the child is taken into care.

There is no shortage of UK, European and UN guidance on the rights of children. The secretary of state’s duty to safeguard the welfare of children in relation to immigration cases is stated in section 55 of the Borders, Citizenship and Immigration Act 2009. The UN Convention on the Rights of the Child requires signatories to ensure that ‘children should be arrested, detained or imprisoned only as a last resort and for the shortest time possible. They must be treated with respect and care, and be able to keep in contact with their family’.

This Convention is the most widely ratified human rights treaty. Only the US has failed to ratify it.

Both the European Return Directive and the European Reception Conditions Directive include rules on the possibility of detention of children. Detention can only be used when absolutely necessary and as a ‘measure of last resort and for the shortest appropriate period of time’.

The Immigration Act 2014 banned the detention of unaccompanied children for more than a 24-hour period at any one time. Although children who have entered the UK can still be detained when they first arrive, their detention is subject to a number of caveats. Restrictions exist on where an unaccompanied child could be detained.

Given our prime minister’s comments, are we justified in believing that what is happening in the US could not happen in the UK?

While all of the national and European safeguards are in place, it would be difficult to move towards the US position. However, there are some concerns about a growing gap between the practice of immigration law in relation to children and the protective legislation in place.

The recent case of AJS v Secretary of State (11 July 2018, Administrative Court) had worrying echoes of the US. The Home Office unlawfully detained (for immigration purposes) and separated a father from his young daughter for three months. When he was released his daughter was just days away from adoption. In a court order approved by the High Court, the Home Office eventually admitted that its officers had detained the father unlawfully throughout his three-month detention, and agreed to pay him £50,000 in damages. The claimant’s representative stated: ‘The duty to treat the best interests of children as a primary consideration is too often subjugated to the perceived need to be tough on immigration, with devastating effects on the welfare of children and parents alike.’

Despite the legislative safeguards, this is a case that could have ended in disaster for this family but for the timely intervention of the courts. The claimants were lucky to have had legal representation in an area of law where legal assistance is slowly becoming non-existent due to cuts to legal aid.

Bail for Immigration Detainees (BID), a charity that supports people in detention in the UK, said they have seen 170 children separated from their parents by the Home Office in the past year – and believes there are likely to be many more. BID and other charities in this area have long criticised the Home Office for separating children from their parents, the decisions often being based on flimsy evidence. Such charities have less confidence in the state’s ability to protect the child than commentators on the law do.

In its 2014 report, State of Children’s Rights in England, the Children’s Rights Alliance UK states: ‘There is evidence that immigration concerns are too often given priority over the best interests of the child in immigration decision-making.’ The report warns that legal aid is no longer available for non-asylum immigration cases, including children’s cases. Children are not, therefore, able to challenge decisions which breach their rights, such as unlawful separation from their parents.

It is comforting to think that ‘it’ could never happen in the UK – that the xenophobic virus infecting the US will not be passed on to us. Surely there are sufficient safeguards in place? We are currently bound by international, European and national legislation designed to protect immigrant children. However, European legislation may not be applicable in a few months’ time and the rhetoric of pro-Brexit ministers (particularly in the lead-up to the Brexit vote) does not auger well for the future. The practice of the Home Office in recent months, as reported by a number of charities and lawyers who represent immigrant children’s interests, leave one less than confident. The casual breaches of fundamental rights by the Home Office in the case of AJS v Secretary of State sent shock waves across the legal community. Once again we are left to rely upon pro bono lawyers and the thin purple line of High Court judges to protect the rights of the most vulnerable arrivals to these shores.

Sailesh Mehta is a barrister at Red Lion Chambers. He was a founding member of the Bar Human Rights Committee. Nicholas Hall (who assisted with research for this article) is a pupil barrister at Red Lion Chambers.