Refugee Children's Consortium http://refugeechildrensconsortium.org.uk Mon, 05 Feb 2018 14:26:09 +0000 en-GB hourly 1 https://wordpress.org/?v=4.9.3 Home Office consideration of children’s ‘best interests’ http://refugeechildrensconsortium.org.uk/icibi-childrens-best-interests/ Tue, 31 Oct 2017 12:04:03 +0000 http://refugeechildrensconsortium.org.uk/?p=512 Independent Chief Inspector of Borders and Immigration (ICIBI) call for evidence: The Home Office’s consideration of children’s ‘best interests’ You can download a print-friendly version of this consultation response here. October 2017 The Refugee Children’s Consortium (RCC) is a group of NGOs working collaboratively to ensure that the rights and needs of refugee and migrant […]

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Independent Chief Inspector of Borders and Immigration (ICIBI) call for evidence: The Home Office’s consideration of children’s ‘best interests’

You can download a print-friendly version of this consultation response here.

October 2017

The Refugee Children’s Consortium (RCC) is a group of NGOs working collaboratively to ensure that the rights and needs of refugee and migrant children are promoted, respected and met in accordance with the relevant domestic, regional and international standards. The RCC has, for many years, highlighted that the best interests of the child must be a major factor in all decisions relating to child refugees and migrants in the UK. It is important that children who have claimed asylum here are sufficiently supported in order to allow them to integrate and contribute to the UK, as well as ensure that best outcomes are achieved for all children.

This section has since been removed (and we would recommend it be reinstated) but an older version of the Home Office Asylum Instruction Processing an asylum application from a child recognised that:

Article 3 of the UNCRC obligates the [Home Office] to ensure that the best interests of the child are a primary consideration in all actions concerning the child. This guidance must be read with this principle clearly in mind and the understanding that Best Interests is a continuous assessment that starts from the moment the child is encountered and continues until such time as a durable solution has been reached.[1]

In order to operationalise Article 3, all asylum and immigration policies and practices must comply with the duty to treat a child’s best interests as a primary consideration in all decision-making and at every stage of the process, applying it to procedures and processes, as well as how immigration claims are considered and determined. Currently, “each public authority or service with a mandate concerning unaccompanied children assesses the best interests of the child from the perspective of the legal and practice framework within which they operate. At present, this leads to variation in the understanding and implementation of the best interests principle.”[2]

Arguable the Home Office has made progress in the considered of children’s best interests in the context of asylum process but less so in the spheres of policy management and substantive asylum/immigration decision making. In June 2013 the Joint Committee on Human Rights (JCHR) in its report, Human Rights of unaccompanied migrant children and young people in the UK, urged the Government to “ensure that all those working with unaccompanied migrant children are given clear guidance about the importance of these best interests” and to “evaluate whether more formal processes are required to properly determine best interests in cases involving unaccompanied migrant children.” In response to the Committee’s comments, in February 2014, the Government agreed to consider the case for establishing a Best Interests Determination process in the context of the existing immigration and asylum process. While we have seen some progress in terms of the language used in Home Office guidance, reports published since 2014 have highlighted continued gaps in the way in which children’s best interests are currently being considered both as children go through the asylum process generally and in relation to substantive decision-making. [3]

A House of Lords EU Committee report found that while the best interests principle is embodied in both EU and domestic law it is largely ignored in practice and evidence suggested that “despite the existence of guidance on the application of the best interests principle, it is not respected and is regarded as an impediment to the effective operation of immigration controls.”[4]

Reception & Initial Encounter

The asylum process tends to concentrate on the immediate pretext to a child asylum seeker’s departure from their country of origin, and fails to take into account other relevant factors about their life prior to leaving, their experiences during their journey, and what has happened since their arrival in the UK. The process is extremely complex and children will struggle to negotiate it without the required support, advice and representation. Research by the Law Centres Network considered how a child’s best interests were considered in the UK asylum system and one child who gave evidence stated that:

It’s like when you come here you are blind, then you get a stick to help you to go, because you don’t know the language, the words they don’t work, and you don’t know the way. By the time you find out, you are refused and all that, so it’s all mixed, and confusion and all that…[5]

A reflection from a young asylum seeker involved in Coram’s Young Citizens leadership programme also highlights the importance of support for children when they first come to the attention of relevant authorities, and the need to prioritise their welfare and immediate safety needs over immigration control concerns:

I was bombarded with information and asked a lot of questions. I hadn’t slept for a day, I was sleeping on bench, I wanted to sleep. I think they could have asked me those questions later on.

Children’s voices, views and experiences are an integral part of best interests assessments and determinations. Upon arrival in the UK, they need to be able to access information in a range of languages and formats explaining, for example, how the asylum and care systems work, the role and purpose of the different ‘authority’ figures they may meet,  what their rights are, and what can happen to them when they turn 18.

A checklist of what needs to happen throughout the process of an asylum claim, available to both young people and those caring for, or working with them, would be helpful. This links too to understanding about the implications of being granted UASC leave (see below).

Age assessments

Age assessments and age disputes continue to be a significant problem and cause lengthy delays in many children’s asylum claims and referrals as victims of trafficking. Recent statistics show that there has been an increase from 318 individuals age disputed by the Home Office in 2014 (16% of all children’s asylum applications to 789 in 2015 (24% of all applications) to 928 in 2016 (28% of all applications).[6] However, as there is no central mechanism for monitoring the outcomes of these disputes, or the cases in which a child’s age is challenged by the local authority, it is impossible to accurately assess the scale of the problem or development of practice in this area.

Home Office statistics on age disputed cases also do not include the category of those applicants who claim to be children but who are treated as adult because in the opinion of an Immigration Officer “their physical appearance and/or general demeanour very strongly indicates that they are significantly over 18 years”. It is therefore not possible to paint a complete picture of the numbers of asylum applicants claiming to be children and it is not possible to track the outcomes for those individuals.

The RCC has long called for the Home Office to amend its guidance in this area. In a recent case, involving a teenager from Sudan placed in immigration detention because the officer said he “reasonably believed” he was older than 18, the Court of Appeal upheld that someone’s age is a matter of “objective fact” and cannot be based on physical appearance or demeanour,[7] yet the Home Office does not intend to depart from its policy of deciding and individual is an adult on that basis. This is in contradiction to age assessment guidance issued by the Association of Directors of Children’s Services[8] and puts children at risk of being placed in adult accommodation or in detention, based on an untrained visual assessment, significantly against the child’s best interests. The impact on a child’s psychological well-being of wrongfully treating an adult as a child, including the possibility of detention is severe and well documented:[9] earlier this Autumn the BBC Panorama investigation on Brook House immigration removal centre exposed the continuing unlawful detention of children on the basis that they ‘looked over 18’. The impact on the child of treating them as an adult should be highlighted within Home Office guidance for caseworkers, to ensure that caseworkers are fully considering the child’s best interests within every element of their decision making. In the words of one young person:

The Home Office are destroying young people’s lives – people who are 15 or 16 are being put into adult accommodation which destroys their hopes and dreams and they’re not given the support they need.[10]

If the existing policy is retained and is intended to cover what the Home Office perceives to be obvious cases then it must be accountable, subject to the appropriate scrutiny, and must provide data to demonstrate that its policy is not being routinely misused. The Home Office should commit to publishing wider statistics on age disputes, including:

  • Record of claimed age/ assigned age
  • The numbers of individuals who claim to be children but are treated as adults by the Home Office
  • The numbers of children who claim to be over 18 but are suspected to be children
  • The numbers subsequently found to be in immigration detention and/or asylum accommodation
  • Final outcomes

The Modern Slavery Act 2015 Section 51 ‘Presumption of Age’ clause strengthens the benefit of the doubt principle in cases where trafficking may be a possible factor. Yet, many frontline professionals, including the Home Office and social workers, are unaware of this duty in primary legislation.

Department for Education (DfE) statutory guidance states that “age assessments should only be carried out where there is significant reason to doubt that the claimant is a child.”[11] However, research has shown that the DfE does not monitor compliance with the guidance but expected a local authority to monitor itself.[12] Concerns have been raised by local authorities on the application of this guidance when they find there is no significant reason to doubt the child’s account but they feel obligated to due to the Home Office dispute of the child’s age. In the case of R(PM) v Hertfordshire Country Council in which it was determined that other public authorities view of age is not, in itself, of any evidential weight or value to the Council, who must exercise their own judgment in assessing the Claimant’s age for the purposes of their section 20 duty [under the Children Act 1989]. Social workers need clear guidance from the Home Office to ensure they are making their own decision as to what is in the child’s best interests and the duties owed to that child as a child in need in their area.

National Transfer Scheme

These young people have come to the UK to find a stable place and it creates a cycle of uncertainty – they might build relationships and take temporary classes to learn the language. One day the social worker comes and tells them they have to move. The stability is not there. If there’s no stability how can you integrate, build relationships, learn the language? If they’re being moved it should be done in a certain amount of time – not allow them to build relationships and settle – it needs to be done in days not in weeks or months. [13]

Launched on the 1st July 2016 by the Home Office and Department for Education, the National Transfer Scheme was described as a ‘new voluntary transfer arrangement between local authorities for the care of unaccompanied children who arrive in the UK and claim asylum’. Operating through a voluntary interim transfer protocol, (‘the interim protocol’),[14] the National Transfer Scheme aims to ensure that the responsibility for supporting these children does not fall disproportionately to a small number of local authorities situated as entry points into the UK (such as Kent and Hillingdon) and that ‘there is a more even distribution of caring responsibilities across the country’.

Transfer can be triggered when the number of unaccompanied asylum-seeking and refugee children under the age of 18 in a local authority area (the entry authority) reaches more than 0.07% of the area’s child population. The local authority can then request that a child is transferred to another local authority through the Home Office’s central administration team. The voluntary transfer protocol introduced new forms for local authorities to complete in relation to children they are caring for – the ‘Unique Unaccompanied Child Record’ (UUCR). The first of this (Part A) is to be completed for all children, regardless of whether they are entering transfer. The central administration team then aims to maintain a database of unaccompanied asylum-seeking children based on the financial receipt information submitted by each local authority and the forms associated with the transfer protocol.

The transfer protocol includes annex 1 on a child’s best interests. This sets out the best interest considerations:

  • the child’s views
  • the child’s identity
  • the child’s care, protection and safety
  • situation of vulnerability
  • the child’s right to health
  • the child’s right to education.

There is in fact a potential conflict between the requirements of the Protocol, and the statutory obligations a local authority is under when looking after a child. For example, the best interests checklist does not consider a child’s family, or the need to support contact between a child and any family they may have in the UK. The protocol cannot supplant any Children Act duties[15]  and does not purport to, referring to the statutory guidance available to local authorities on their duties without explicitly highlighting that a looked after child awaiting transfer remains entitled to Children Act services on the same basis as any other looked after child in the area.  However, in practise, local authorities refer to the appendix and the presumption of transfer, rather than to the welfare checklist, or their statutory obligations to looked-after children.

While the transfer scheme is not of itself contrary to a child’s best interests, its implementation raises serious concerns about the adequacy of the best interests safeguards. The RCC has recently highlighted a number of problems with the NTS, including delays in transfer and problems with accessing services in the receiving local authority – the more detailed briefing can be found here. In many cases, children are not being transferred for weeks and even months, and are not being adequately prepared for transfer.

Many of these problems with the scheme relate to social work practice and the need for social workers to ensure that the best interests of any child in the NTS to be assessed on an ongoing basis – especially when there has been a period of delay. This needs to be properly communicated with young people and their carers. However, it is important that the Home Office also play its part in ensuring that the protocol and any accompanying guidance is sufficiently clear and robust, and in communicating the need for ongoing assessment and working with local authorities to ensure that children are sufficiently safeguarded through the process. This guidance also needs to address the issue of age assessment and what happens if a child is re-age assessed after transfer, risking them being left unsupported. There must be clearer protections for children stuck in administrative processes.

It should be explicit throughout the National Transfer Protocol that an expedite transfer will usually be in the best interest of the child, with clear steps and timelines to ensure that all parties are clearer about the transfer process. There should be a set timeframe in which transfer should occur, after which the young person must be updated in person and in writing, with the oversight of an Independent Reviewing Officer and support from an independent advocate. This would go some way to reducing the risk of children being transferred and then going missing.

When the transfer scheme was originally discussed, in March 2015, the Home Office committed to ‘looking at access to legal aid as a priority and availability of specialist services’.[16] However, this remains an issue. The lack of available legal advice is a common concern throughout most receiving authorities. Within a number of regions, there are very few legal aid solicitors for asylum and capacity to take on a large batch of new cases quickly. These cases will require legal advisers who are accredited to level 2 under the IAAS scheme – this further limits the number of legal advisers available for these complex cases.

We have also had reports of cases where children who are potential victims of trafficking are still subject to transfer despite concerns around their safety and risk of going missing. It is questionable whether the child’s best interests are taken into account in these circumstances and better coordination, with clearer rules for child victims of trafficking in circumstances surrounding transfer.

It is also important that the scheme does not become embedded without an assessment of whether it is functioning as planned. This requires information that it is both alleviating the pressures on entry local authorities caring for large numbers, and that the scheme is operating in a child’s best interests. Robust data should be collected on transfer timescales, the age of children at transfer, and potential impact on asylum claims. The RCC would strongly encourage an independent assessment of the NTS and for the setting of standards by which the scheme will be assessed on an ongoing basis.

UASC Leave and best interests in decision making

Decision making

As highlighted above the best interests of a child must inform Home Office processes as well as Home Office decision making. RCC members routinely see poor quality decision-making in which the duty under section 55 of the Borders, Citizenship and Immigration Act is referred to, but not considered in detail. Recent research by Coram Children’s Legal Centre looked at decision-making in family cases, and in our sample, 40% of decisions had not engaged with the child’s best interests, and 20% devoted just a couple of sentences to the child’s best interests.[17] This mirrored other research, including research related to the cases of separated children where the best interests decision did not engage with the legal arguments, or facts presented in each case.[18] In the report ‘Put yourself in our shoes’,[19] the Law Centres Network examined 60 children’s asylum claims. At the time of writing, 26 of the 60 children had received decisions refusing their international protection claims. Although the report did not deal in detail with the decision-making in these cases, it noted that:

  • Of the 26 decisions, only 14 refusal decisions explicitly referred to the s55 guidance, largely by way of a generic paragraph (in identical terms) cited at the beginning (10) or the end (4) of the refusal letter.
  • There was little additional evidence of decision-makers ‘having regard to’ or undertaking a child-specific analysis of the facts and issues in the reasons advanced for refusal.
  • The UNCRC was mentioned in only six of the 26 decisions and again in standard paragraphs.
  • The recognition and/or importance of finding a durable solution is mentioned in only one of the 26 decisions (when refusing a 16 year old child ‘UASC’ leave).
  • There is limited reference to the children’s maturity and development.
  • The following standard paragraph is mentioned in three cases: “more weight has been placed on objective indications of risk than to your state of mind and understanding of your situation. It is considered that at your age you would still have some understanding of the situation.” And in one of the three cases: “Careful regard has been given to your age at the time of interview and the above answers provided in relation to the inconsistency presented.” The report concluded that “such generic reasons obscure rather than reveal whether the child’s credibility has been properly assessed”.

Research by the Children’s Society has also found that unaccompanied children’s best interests in England are not systematically and comprehensively assessed within immigration decision-making.[20] Participants in its research repeatedly highlighted that measures designed to consider what is in a child’s best interests are inconsistent, unclear or tokenistic.

While it has improved over the years, Home Office guidance in respect of best interests and decision-making in children’s cases remains limited, without any reference to case-law developing the points made by the Supreme Court in ZH (Tanzania) [2011] UKSC 4. The Asylum Instruction Children’s Asylum Claims[21] refers to ZH (Tanzania) but rather than set out the legal principles arising out of the case, the guidance instructs decision-makers to consider a series of questions, which do not take into account the primacy of a child’s best interests.

In commenting on the draft guidance, the Refugee Children’s Consortium suggested that decision-makers should also be asked to consider the guidance given by the Supreme Court in Zoumbas v Secretary of State for the Home Department[22], (emphasis added):

(2)…  the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child’s best interests do not of themselves have the status of the paramount consideration;
(3) Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant;
(4) While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play;
(5) It is important to have a clear idea of a child’s circumstances and of what is in a child’s best interests before one asks oneself whether those interests are outweighed by the force of other considerations;

We do not believe that best interests can be properly assessed by answering the narrow questions set out in the current guidance, and that without a clear understanding of the legal principles, it is unlikely that decision-making will improve.

UASC leave

The RCC has long raised concerns regarding the types of leave granted to unaccompanied asylum-seeking children in the UK and how the Home Office consider the best interests of the child during the asylum process.  Many unaccompanied children are refused asylum and granted limited leave as an unaccompanied minor (UASC leave). In 2016, this type of leave was granted in 50% of all cases for children – in 2015, it was granted in 52% of cases.[23]  ‘UASC leave’ only lasts until the child is 17.5 years old or 2.5 years, whichever is shorter. It is granted to children who are found not to be in need of international protection (they have been refused refugee and humanitarian protection) but who cannot be returned to their country of origin because there are no adequate reception arrangements in place there.  Once a child reaches the age of 18, they can no longer be granted this leave, because as it is set out in the rules it requires the applicant to be a minor. There is still a lack of understanding of the options available to young people granted UASC leave, both amongst the young people themselves and social workers and others caring for them. As a result, many do not understand that a grant of UASC leave is still a refusal of asylum and therefore can be appealed.

In 2013, the Joint Committee on Human Rights has a highlighted the shortcomings of grants of limited leave (Discretionary Leave at the time) stating that: ‘Discretionary leave to remain is used too readily at the expense of properly considering other options, such as asylum, which hinders access to further education and to the labour market in adulthood’. Short grants of leave assume that return at 18 will be an option. Yet a recent study about the impact of removal on former unaccompanied children to Afghanistan showed that many were caught up in bomb blasts or suicide attacks and some were threatened or targeted as a result of issues connected to their original asylum claims made in the UK.[24] If return at 18 is not an option, then the decision to grant short term leave is not in the best interests of the child – instead it leaves them in limbo, unable to build their futures in the UK and increasing anxiety and possible mental health issues.

As an unaccompanied minor who has travelled through many countries, where many promises were broken and hopes weren’t met, getting to the UK and feeling like this is my home and I want to settle and then to be given a status where you have two years and then might be sent back – this effects your stability, your mental health and building relationships in school. It’s a cycle – you start off with uncertainty and then here you are again and given more uncertainty. This cycle needs to be broken. 

It really affects you because you’re in an uncertain situation, lose motivation, feel hopeless, restricted, limited and can’t access services that other citizens can. Even if you go to college you don’t know what’s going to happen and you can’t concentrate, it affects you mentally – depression, anxiety because they don’t know what’s going to happen. [25]

There is no reference in its asylum instruction to Home Office discretion to granting a longer period of UASC leave, presumably because the leave is dependent on the child being under 18. In policy regarding granting discretionary leave (DL) to children seeking asylum, ‘in the event that the file contains information that would make it less likely that return would be likely upon turning 18, consideration to granting an appropriate period of DL must be given’, including Indefinite Leave to Remain (ILR). However, it is the experience of RCC members that children in the asylum system rarely, if ever, receive a grant of leave longer than 30 months, regardless of their circumstances.[26]

The courts have held in relation to an old policy that there are problems with the Home Office granting short periods of leave without considering a child’s need for stability and their best interests,[27] and that ‘where there is strong evidence to suggest that the child’s life would be adversely affected by the grant of limited leave’, ILR should be granted.[28] In spite of this, the existing system of short periods of leave and drawn-out routes to settlement persists. If truly considering the best interests of the child, the RCC believes that decision makers should systematically be considering the option to grant indefinite leave to remain from the outset of considering a child’s claim, rather than always using the default position of UASC leave if the relevant grounds for refugee status and humanitarian protection have not been met.

It is important to note also that the move to actively review refugee leave after at the point of application for indefinite leave to remain is also of concern because of its impact on a child’s best interests. This requires a decision-maker to reassess whether someone still requires refugee status after five years. We are aware of cases of young people who have been refused indefinite leave to remain on the basis that their country of origin is now safe. Although they are likely to have strong additional reasons to remain in the UK, this must raise concerns that the period of refugee leave remains a period of limbo where permanence cannot be guaranteed. This may have a far greater impact on children who have sought asylum and who are unable to plan into adulthood without certainty that they will continue to be recognised as in need of international protection. We are concerned that there is no monitoring of the potential impact of the amended active review policy and believe that this should be introduced in order to evaluate the success of active review.

A grant of UASC leave is not a long-term solution for children and will place barriers to the child being able to integrate in the UK, including in education, employment and travel. UNCHR & UNICEF have stated that “While regularising immigration status, this temporary leave does not constitute a durable solution for the child but instead leads to an uncertain future. Evidence suggests it also can create barriers for local authorities in undertaking any meaningful long-term planning with the child.”[29] A grant of refugee leave as short-term leave creates further instability among a wider group of children and young people.

Too often decisions show little regard and a lack of significant consideration of a child’s best interests.  The lack of a formal multi-agency procedure to determine the best interests of the child and therefore inform the immigration decision undermines the ability of decision-makers to protect and promote the rights of each individual child and find the best durable solution for them.

[1] Section 1.3 ‘Processing an asylum application from a child’, as at February 2015

[2] UNHCR and UNICEF UK, What the United Kingdom can do to ensure respect for the best interests of unaccompanied and separated children, 2016.

[3] Including Greater Manchester Immigration Aid Unit, Childrens Best Interests: A Primary Consideration?, 2013; Kent Law Clinic, How children become ‘failed asylum-seekers, 2014 at http://www.kent.ac.uk/law/clinic/how_children_become_failed_asylum-seekers.pdf; Law Centres Network, Put yourself in our shoes, 2015 at http://www.lawcentres.org.uk/policy/news/news/keep-children-s-best-interests-at-heart-of-asylum-system-new-report ; ECPAT UK, Lighting The Way, 2017; The Children’s Society, Not Just a Temporary Fix: Durable solutions for separated migrant children, 2015, at https://www.childrenssociety.org.uk/what-we-do/resources-and-publications/not-just-a-temporary-fix-durable-solutions-for-separated

[4] House of Lords EU Committee, Children in crisis: unaccompanied children in the EU, 2016, conclusion 20.

[5] Law Centres Network, Put yourself in our shoes, 2015 http://www.lawcentres.org.uk/policy/news/news/keep-children-s-best-interests-at-heart-of-asylum-system-new-report

[6] Home Office, Immigration Statistics, Asylum data tables volume 3, at https://www.gov.uk/government/publications/immigration-statistics-january-to-march-2017/list-of-tables#asylum

[7] http://www.childrenslegalcentre.com/age-assessments-young-asylum-seekers/

[8] http://adcs.org.uk/assets/documentation/Age_Assessment_Guidance_2015_Final.pdf

[9] See, for example, Coram Children’s Legal Centre, Happy Birthday? Disputing the age of children in the immigration system, 2013 at http://www.childrenslegalcentre.com/report-happy-birthday-disputing-age-children-immigration-system/

[10] Unaccompanied young person involved in Coram’s Young Citizens programme. – http://www.coram.org.uk/how-we-do-it/supporting-young-people

[11] Department for Education, Statutory Guidance Care of unaccompanied and trafficked children 2014 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/330787/Care_of_unaccompanied_and_trafficked_children.pdf

[12] ECPAT UK, Lighting The Way, 2017

[13] Unaccompanied young person involved in Coram’s Young Citizens programme

[14] https://www.gov.uk/government/news/government-launches-national-transfer-scheme-for-migrant-children

[15] Children Act 1989 s1(3)(a) refers to wishes and feelings of a child during a family law process, s11(1) Children Act 2004 places an obligation on public authorities to safeguard and promote the welfare of children.

[16] Discussed in the National Asylum Stakeholder Forum Children’s Subgroup on 29 March 2015

[17] Coram Children’s Legal Centre, This is My Home, 2017, p16 at http://www.childrenslegalcentre.com/this-is-my-home/  

[18] See MiCLU, Precarious Citizenship: unseen, settled and alone – the legal and protection needs of ‘undocumented’ children and young people in England and Wales, MiCLU 2017, p 79,

[19] Law Centres Network, Put Yourself in our Shoes, 2015, pp139-140

[20] The Children’s Society, Not Just a Temporary Fix: Durable solutions for separated migrant children, 2015

[21] Home Office asylum instruction, Children’s Asylum Claims, version 2.0, p 63, at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/650514/children_s-asylum-claims-v2_0.pdf

[22] [2013] 1 WLR 3690, para 10

[23] Refugee Council, Asylum Statistics, August 2017 https://www.refugeecouncil.org.uk/assets/0004/1347/Children_in_the_Asylum_System_Aug_2017.pdf

[24] Refugee Support Network (2015) After Return: documenting the experiences of young people forcibly removed to Afghanistan https://refugeesupportnetwork.org/blog/after-return

[25] Quotes from young asylum seekers involved in Coram’s Young Citizens programme

[26] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/650514/children_s-asylum-claims-v2_0.pdf

[27] SM & Others v Secretary of State for the Home Department [2013] EWHC 1144

[28] R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills [2014] EWCA Civ 1216, para 78. It was felt that the Applicant’s life would indeed be so adversely affected because of her inability to embark on a course of study at the right time in her life and was of the view that had she been able at the time, the appellant could have ‘applied for ILR on the grounds that she would not otherwise have been eligible for student funding at an appropriate age and had she made clear her situation and the strong likelihood, if not certainty, that she would anyway be entitled to ILR in 2018, she ought, all other things being equal, to have been entitled to have been granted it at once.’

[29] UNHCR & UNICEF, What the UK can do to ensure respect for the best interests of unaccompanied and separated children, June 2016

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A strong and united voice for refugee and migrant children   http://refugeechildrensconsortium.org.uk/rcc-strong-united-voice/ Mon, 07 Aug 2017 16:38:50 +0000 http://refugeechildrensconsortium.org.uk/?p=504 A strong and united voice for refugee and migrant children What is the Refugee Children’s Consortium? The Refugee Children’s Consortium (RCC) was established during the passage of the 1999 Immigration and Asylum Bill through Parliament. The RCC began as, and remains, a lobbying group that brings together organisations with expertise in refugee and/or children’s issues. Together […]

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A strong and united voice for refugee and migrant children

RCCWhat is the Refugee Children’s Consortium?

The Refugee Children’s Consortium (RCC) was established during the passage of the 1999 Immigration and Asylum Bill through Parliament. The RCC began as, and remains, a lobbying group that brings together organisations with expertise in refugee and/or children’s issues. Together we contribute to the debate on how refugee and migrant children’s rights can best be protected in an increasingly hostile environment.

Membership of the RCC is open to registered charities and not for profit organisations and there are now 47 members and five organisations with observer status.  The RCC has a collective voice across not just the refugee sector but the wider children’s sector, lending force and credibility to its work. Membership is multi-disciplinary, spanning policy, legal, advocacy and social welfare practitioners, and over time the RCC has established a continuity and depth of experience in dealing with government departments, especially the Home Office. Establishing joint positions also helps to ensure that our recommendation are strong and well considered and over time the Consortium has built up a reputation and credibility, strong parliamentary ties and respect across Westminster and Whitehall.

Looking back at RCC work-plans, many of the issues being addressed in the early 2000s are still on the agenda in 2017. We are still fighting to ensure that refugee, asylum-seeking and migrant children enjoy the same support and standard of living as other children – a task that has been made more difficult by the Immigration Acts of 2014 and 2016.

Progress

However, there has also been plenty of progress in the years since the RCC began its work:

  • The UK lifted its reservation to the UN Convention on the Rights of the Child in 2008 and, through section 55 of the Borders, Citizenship and Immigration Act 2009, placed a statutory duty on the Home Office to safeguard and promote the welfare of children in the exercise of its functions.
  • Plans to forcibly return unaccompanied children to Vietnam, Afghanistan and Albania have all been reconsidered (though young people over the age of 18 are still returned).
  • In 2010 the political commitment to ending child detention saw the number of children entering detention drop from 1,119 in 2009 to 71 in 2016. In 2014 the Department for Education published its first guidance specifically on unaccompanied children, refreshed in 2017 (although awaiting publication) with considerable input from the RCC.
  • In 2015 the RCC contributed to the first ever local government guidance for social workers on age assessments.
  • The need to assess what is in the best interests of the child now runs through Home Office guidance, even if there is far more to be done in terms of practice.

While the pace of change has sometimes been frustratingly slow, the constant engagement of the RCC as a strong and united voice for refugee and migrant children has contributed to gradual long-term improvements, and has prevented a retreat from hard-won victories that can come about with political change.

The future

But there is far more to be done. We have seen considerable changes to the safety and security of migrants in the UK, and thousands of refugee and migrant children still do not receive the support and protection here that they so desperately need. The impact of removing immigration legal aid from scope has left many in legal limbo, children alone are still being granted temporary leave to remain in the UK, many families are still at risk of forced destitution, and children are still falling through the gaps. Today we face new challenges brought by children being moved around Europe through the Dublin III regulation and around the UK under the National Transfer Scheme. Hundreds still are not being recognised as victims of trafficking and/or are going missing. The Immigration Act 2016 contains provisions which may exclude migrant care-leavers from support – rendering them destitute, and there is still much work to be done on the implementation of the Act.

This website will hold all of the RCC’s briefings, statements and submissions and hopefully serve as a useful resource for those interested in helping this group of children and young people. While a strong voice advocating for this vulnerable group is likely to be needed for years to come, the growth in the size of the RCC over the years demonstrates the desire from organisations of all sizes to continue to search for political solutions, to hold government to account, and to do the best possible work to help children and young people secure status, safety and stability.

The RCC serves both as a means of information-sharing within the sector and as a vehicle for different organisations to work together towards a common aim. Collective positions are very strong politically and at a time when charities are more and more stretched, the RCC allows us to come together, truly more than the sum of our parts, to achieve more than we would be able to achieve individually.


For more information, or if you would like to join, please contact the RCC’s chair Kamena Dorling at kamena.dorling [at] coramclc.org.uk

The post A strong and united voice for refugee and migrant children   appeared first on Refugee Children's Consortium.

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What is the Refugee Children’s Consortium? http://refugeechildrensconsortium.org.uk/refugee-childrens-consortium/ Mon, 07 Aug 2017 16:14:38 +0000 http://refugeechildrensconsortium.org.uk/?p=493 A strong and united voice for refugee and migrant children   What is the Refugee Children’s Consortium? The Refugee Children’s Consortium (RCC) was established during the passage of the 1999 Immigration and Asylum Bill through Parliament. The RCC began as, and remains, a lobbying group that brings together organisations with expertise in refugee and/or children’s issues. […]

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A strong and united voice for refugee and migrant children  

refugee children's consortiumWhat is the Refugee Children’s Consortium?

The Refugee Children’s Consortium (RCC) was established during the passage of the 1999 Immigration and Asylum Bill through Parliament. The RCC began as, and remains, a lobbying group that brings together organisations with expertise in refugee and/or children’s issues. Together we contribute to the debate on how refugee and migrant children’s rights can best be protected in an increasingly hostile environment.

Membership of the RCC is open to registered charities and not for profit organisations and there are now 47 members and five organisations with observer status.  The RCC has a collective voice across not just the refugee sector but the wider children’s sector, lending force and credibility to its work. Membership is multi-disciplinary, spanning policy, legal, advocacy and social welfare practitioners, and over time the RCC has established a continuity and depth of experience in dealing with government departments, especially the Home Office. Establishing joint positions also helps to ensure that our recommendation are strong and well considered and over time the Consortium has built up a reputation and credibility, strong parliamentary ties and respect across Westminster and Whitehall.

Looking back at RCC work-plans, many of the issues being addressed in the early 2000s are still on the agenda in 2017. We are still fighting to ensure that refugee, asylum-seeking and migrant children enjoy the same support and standard of living as other children – a task that has been made more difficult by the Immigration Acts of 2014 and 2016.

Progress

However, there has also been plenty of progress in the years since the RCC began its work:

  • The UK lifted its reservation to the UN Convention on the Rights of the Child in 2008 and, through section 55 of the Borders, Citizenship and Immigration Act 2009, placed a statutory duty on the Home Office to safeguard and promote the welfare of children in the exercise of its functions.
  • Plans to forcibly return unaccompanied children to Vietnam, Afghanistan and Albania have all been reconsidered (though young people over the age of 18 are still returned).
  • In 2010 the political commitment to ending child detention saw the number of children entering detention drop from 1,119 in 2009 to 71 in 2016. In 2014 the Department for Education published its first guidance specifically on unaccompanied children, refreshed in 2017 (although awaiting publication) with considerable input from the RCC.
  • In 2015 the RCC contributed to the first ever local government guidance for social workers on age assessments.
  • The need to assess what is in the best interests of the child now runs through Home Office guidance, even if there is far more to be done in terms of practice.

While the pace of change has sometimes been frustratingly slow, the constant engagement of the RCC as a strong and united voice for refugee and migrant children has contributed to gradual long-term improvements, and has prevented a retreat from hard-won victories that can come about with political change.

The future

But there is far more to be done. We have seen considerable changes to the safety and security of migrants in the UK, and thousands of refugee and migrant children still do not receive the support and protection here that they so desperately need. The impact of removing immigration legal aid from scope has left many in legal limbo, children alone are still being granted temporary leave to remain in the UK, many families are still at risk of forced destitution, and children are still falling through the gaps. Today we face new challenges brought by children being moved around Europe through the Dublin III regulation and around the UK under the National Transfer Scheme. Hundreds still are not being recognised as victims of trafficking and/or are going missing. The Immigration Act 2016 contains provisions which may exclude migrant care-leavers from support – rendering them destitute, and there is still much work to be done on the implementation of the Act.

This website will hold all of the RCC’s briefings, statements and submissions and hopefully serve as a useful resource for those interested in helping this group of children and young people. While a strong voice advocating for this vulnerable group is likely to be needed for years to come, the growth in the size of the RCC over the years demonstrates the desire from organisations of all sizes to continue to search for political solutions, to hold government to account, and to do the best possible work to help children and young people secure status, safety and stability.

The RCC serves both as a means of information-sharing within the sector and as a vehicle for different organisations to work together towards a common aim. Collective positions are very strong politically and at a time when charities are more and more stretched, the RCC allows us to come together, truly more than the sum of our parts, to achieve more than we would be able to achieve individually.


For more information, or if you would like to join, please contact the RCC’s chair Kamena Dorling at kamena.dorling [at] coramclc.org.uk

The post What is the Refugee Children’s Consortium? appeared first on Refugee Children's Consortium.

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Briefing on the National Transfer Scheme, August 2017 http://refugeechildrensconsortium.org.uk/national-transfer-scheme/ Mon, 07 Aug 2017 16:03:01 +0000 http://refugeechildrensconsortium.org.uk/?p=486 Briefing on the National Transfer Scheme, August 2017 You can download a print-friendly version of this briefing here. Background Launched on the 1st July 2016 by the Home Office and Department for Education, the National Transfer Scheme was described as a ‘new voluntary transfer arrangement between local authorities for the care of unaccompanied children who […]

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Briefing on the National Transfer Scheme, August 2017

You can download a print-friendly version of this briefing here.

Background

Launched on the 1st July 2016 by the Home Office and Department for Education, the National Transfer Scheme was described as a ‘new voluntary transfer arrangement between local authorities for the care of unaccompanied children who arrive in the UK and claim asylum’.1https://www.gov.uk/government/news/government-launches-national-transfer-scheme-for-migrant-children Operating through a voluntary interim transfer protocol, (‘the interim protocol’),2Home Office, Department for Education and Department of Communities and Local Government, Interim National Transfer Protocol for Unaccompanied Asylum Seeking Children 2016-17, at
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/534258/Interim_National_UASC_transfer_protocol.pdf
the National Transfer Scheme aims to ensure that the responsibility for supporting these children does not fall disproportionately to a small number of local authorities situated as entry points into the UK (such as Kent and Hillingdon) and that ‘there is a more even distribution of caring responsibilities across the country’.

Transfer can be triggered when the number of unaccompanied asylum-seeking and refugee children under the age of 18 in a local authority area (the entry authority) reaches more than 0.07% of the area’s child population. The local authority can then request that a child is transferred to another local authority through the Home Office’s central administration team. If not otherwise agreed, the local authority receiving the child will be responsible for covering the costs of transporting the child from the local authority where they entered the UK. The voluntary transfer protocol introduced new forms for local authorities to complete in relation to children they are caring for – the ‘Unique Unaccompanied Child Record’ (UUCR). The first of this (Part A) is to be completed for all children, regardless of whether they are entering transfer. The central administration team then aims to maintain a database of unaccompanied asylum-seeking children based on the financial receipt information submitted by each local authority and the forms associated with the transfer protocol.

Having passed its one year anniversary, the interim protocol is being reviewed. Members of the Refugee Children’s Consortium (RCC) have witnessed a number of problems with the Scheme as it currently operates, and have heard of further issues directly from social workers and Independent Reviewing Officers – this paper outlines some of those problems, with a view to informing any review and ensuring that all moves only take place when they are in the child’s best interests.

The following information is based on FOI requests made on locations of children (October 2016) and the views of staff in one entry area, three strategic migration partnerships and two receiving local authorities. NGOs across England who are supporting children, including the Refugee Council, Greater Manchester Immigration Aid Unit, ECPAT UK, The Children’s Society and Home for Good have also shared their experiences. Most of the data is qualitative, but the RCC is of the firm view that there are significant problems with the NTS as it currently operates that need addressing.

Issues with the National Transfer Scheme

1. Delays in transfer

When the transfer of children from Kent was first discussed in 2015, there was consensus that transfer should take place swiftly, with early discussions aiming for transfer to take place within 48 to 72 hours of arrival. The interim protocol is relatively silent about timescales. It states that ‘the entry local authority will make the transfer decision as soon as practicable and suitable – ideally within 48 hours (two working days) of the child’s arrival in to the care of the entry local authority, although deferral may be necessary. It later states that ‘the receiving local authority administration lead will as soon as possible (ideally within 1 working day of receiving [the transfer allocation] acknowledge allocation by email to the receiving regional administration lead [and] confirm transfer acceptance to the entry local authority’. Once the UASC transfer team has received a transfer request, ‘it is expected that the transfer should take no more than ten working days to confirm’. There is no timeframe for how quickly transfer should take place once the receiving local authority has confirmed the transfer acceptance, although they become legally responsible for the child from that point under section 69 of the Immigration Act 2016. The draft revised protocol circulated in July 2017 retains these timeframes and makes provision for delaying a transfer in the best interests of children.

Moving a child must take account of their best interests and that this will usually include an expeditious transfer. Yet, RCC members are seeing many cases where children are not being transferred for weeks and even months. If a young person has been in a London borough or in Kent for a few weeks or more, then transfer can be very problematic, with the young person very resistant to being moved. Many referrals are taking place when the child has been in the entry local authority for over a month. In one case, a young person had been in the entry local authority for over a month and had already been moved three times. Having been with a foster family for two weeks he was extremely upset about the prospect of moving a fourth time. We have had examples of children saying they will not move, or that they will harm themselves if moved. In one case, the young person moved was so distressed that they began self-harming, and the receiving local authority had to do a ‘deal’ with the sending local authority so that he could be returned.

One issue may be that while certain regions have a good system in place, not all do and this is resulting in difficulties with making referrals from London and the South East. Authorities with lower number are prioritising transfers within region. Even where a receiving local authority is found there may still be delays in the physical transfer of a child. In one case we looked at, the transfer was requested within the 48 hour time frame, but although the child was told he would move, there was no confirmation about which area would be able to take him for two months. Once the area was confirmed, it took a further two weeks before a foster carer was found. This meant that although he was aware he would be transferred, the young person was unable to prepare because he did not know when or where this would take place.

It is difficult to examine exactly where delays are taking place, and whether in each case they are occurring at the same point, or if it is an amalgam of different factors:

  • Entry local authority either requesting transfer or sending information outside 48 hour timeframe
  • Home Office making contact with Strategic Migration Partnerships
  • SMPs then making contact with potential receiving local authorities, and those local authorities responding about whether spaces are available.
  • Physical transfer of child from entry to receiving local authority

What is clear is that in a significant number of cases, transfer is not taking place within a child’s best interests timeframe. In one authority, no transfers were known to have taken place in a two week timeframe since November 2016. Where young people were transferred, the majority were between 2-3 months or 3-4 months from arrival to transfer. A minority of cases took 5-6 months, with some cases still awaiting transfer after 6 months. Delays have resulted in disruption of education, legal advice and support that was being provided.

There has been confusion regarding transfer timescales, which could result in delays being perceived as longer than they are. In Kent, there are a number of children who transferred prior to 1st July who transferred on voluntary arrangements and may have been in Kent for up to six months prior to moving but still had a strong desire to leave. In one local authority area that acted as a receiving local authority, the majority of children were received within two weeks of the area notifying that they were able to accommodate them.

Two local authorities had experienced cases when ultimately the child was not moved. In one it had been apparent that the child was never going to be able to move, and after six weeks this was agreed. The outcome was described as good, but not the process. In the other case transfer was stopped after the involvement of the young person’s solicitor. The young person had threatened to commit suicide if moved and had a history of self-harm.

A key issue seems to be the lack of clarity for social workers and IROs as to what should happen in relation to the NTS when a delay results in the entry local authority deciding that the transfer is no longer in the child’s best interests, usually due to the lack of actual physical transfer in the expected timeframe and the child becoming settled.

2. Delays in access to services and lack of available services

When the transfer scheme was originally discussed, in March 2015, the Home Office committed to ‘looking at access to legal aid as a priority and availability of specialist services’.3Discussed in the National Asylum Stakeholder Forum Children’s Subgroup on 29 March 2015 However, this remains an issue. The lack of available legal advice is a common concern throughout most receiving authorities. Within a number of regions, there are very few legal aid solicitors for asylum and capacity to take on a large batch of new cases quickly. These cases will require legal advisers who are accredited to level 2 under the IAAS scheme – this further limits the number of legal advisers available for these complex cases. It also means that there will be further requirement for community care solicitors and public law contract solicitors – for legal advice in relation to age assessments, welfare issues and judicial review of trafficking decisions. Again, there is a lack of legal aid solicitors in these areas.

In the East of England, for example, the lack of legal aid providers is particularly acute. Waits of two or three months for an appointment with a lawyer are not uncommon – in more than one case, the young person had to wait for four months. This inevitably delays the progress of their asylum claim, which can have extremely negative effects on their mental health and causes difficulties in care planning. By October 2016, there had been 59 transfers to Devon, however the only legal advice for immigration and asylum available for the whole county is in Plymouth, raising significant issues about capacity.

Access to legal advice is not solely a problem for those undergoing transfer, but the significance should not be underestimated. To accommodate delays in accessing a legal representative, the Home Office has introduced flexibility with the deadline for completing the SEF,4Discussed in the National Asylum Stakeholder Forum Children’s Subgroup on 14 December 2016 extending this to 60 days. For those who are 17, or even 16 years old, delays and timescales are particularly crucial as they can result in the young person ‘ageing out’ and/or not being appropriately cared and planned for. It can also make a significant difference to their asylum claims, as there are different considerations for a young person’s risk on return as under 18 or over 18. With delays of months not uncommon, this can lead to young people having their asylum interview and decision made after they are 18 and at a higher prospect of being refused protection. With delays already an issue in the asylum decision making process (RCC members have worked with a number of young people who have seen delays between their interview and decision of around one to two years, by which time they are over 18) the NTS has in some cases led to further delays in a child’s asylum claim.

There is an additional concern in relation to the availability of interpreters to attend legal appointments in transfer areas. In one area in the North East, interpreters were required to travel from London which meant that costs of an interpreter were for a full day, even for a short appointment and that in many cases finding an interpreter willing to make a 2-3 hour journey was extremely difficult. This had an impact both on access to legal advice and the local authority’s ability to communicate with the child.

In several areas, concerns were raised about the appropriateness of transfer to meeting the cultural and religious needs of children. One receiving local authority said that the area lacked a diverse population, and therefore there was no one to speak the child’s language, or where the foster carer could buy food. There was also not a mosque near to where the child had been placed. This was echoed in the sending area, where a child had begun visiting a temple in London and was then moved to the South-West where there was no temple for them to attend.

Foster carers in various regions reported a lack of training and awareness around child trafficking, cultural values, the effects of trauma and its behavioural manifestations on this group of young people. Even though, Refugee Council and ECPAT UK delivered foster carer and support worker training nationally to 1,230 (average of 85 individual and group requests fulfilled) participants funded by the Department for Education, there are still 257 pending requests from both Local Authority and private Fostering Agencies (groups and individuals) requesting training.

At least one NGO raised the issue of the paucity of mental health services in some areas. While access to CAMHS is a near universal problem, in certain areas access to additional support proved difficult. Access to ESOL provision has also been raised as a concern. Access to services can be further complicated by delays in proper care planning (see section 4 below).

3. Children and carers are not adequately informed and/or prepared for transfer.

Young people and their foster carers are often unaware that they are in the scheme. The only indication seems to be when young people are being told not to apply to go to school and are not assigned a social worker. Many of these children are also not provided with an interpreter or independent advocate. In one case, a child in foster care was only told they were being transferred two hours before departure. This has caused a lot of fear and uncertainty about transfer – to some young people it feels like a punishment.

In some areas foster carers are apparently routinely told the child might be transferred and then receive little information as to whether or not a decision has been made to put the child for transfer and/or decide that the child would stay in the placement. This exacerbates the many challenges facing carers and children in making relationships and settling in. Foster carers have also expressed concerns about children being taken to them under NTS at very short notice. In one case, it took a week to get access to language line so they could actually communicate with the young person. Some RCC members find it difficult to track young people once they have been moved.

In two separate cases, foster carers reported children arriving with a few hours’ notice to their placement, with no local authority social worker present, and no interpreter, or access to a telephone interpreting line, so the child could be informed about the foster carers’ role or who they were. These events present as a safeguarding risk, it is known that children who are not given information on the nature of their placement are at risk of going missing from care. In one case, the foster carer stated:

“My husband and I have experience of fostering unaccompanied children and are pretty convinced that he will go missing once a new placement is found.”

Numerous concerns were raised by foster carers who received children under the NTS around the lack of support and lack of training on the care of unaccompanied children that they, as well as their supervising social workers, had received. Many reported that the child’s social worker lacked knowledge and understanding on the key process affecting this group of children, particularly immigration and asylum procedures. In a number of cases where children were transferred, they had been screened in Croydon prior to transfer. Concerns were raised about whether they had legal advice prior to this, and what had happened to any notes.

Many transfers are into urban areas, and one way of helping to prepare children for moving is to put together packs about different cities – Kent has been doing this. In the East of England, authorities are intending to start using Syrian resettlement city packs.

4. Impact on social work practice

The effective functioning of the NTS may be being undermined by the perceived relationship between the Home Office and local authorities. In one case the young person was desperate to stay in the entry local authority with his foster carers but was told that the entry authority was ‘full up’ and that ‘immigration law states that he has to move’. This is not the case and social workers should not feel that once transfer has been initiated that they are unable input and request that the transfer is halted if it is no longer in the best interested of the child. The protocol should be clear that best interest assessments should be undertaken on an ongoing basis and that social workers should actively review the process.

It is also important that the ‘Unique Unaccompanied Child Record’ is not perceived as a ‘stand in’ for a proper care plan while an entry authority is waiting for transfer to be facilitated, especially in light of lengthy delays. Complete files must travel with the child to the receiving local authority, and this is not happening in every case.

5. Age assessments

The mechanism for a local authority to provide its observation of the young person’s age appears to be the ‘Unique Unaccompanied Child Record’ (UUCR) which is annexed to the Protocol. Described as ‘reception information’, the entry authority is required to complete and submit the UCCR “in respect of each unaccompanied child who begins to be looked after, and submitted promptly by the local authority to (central admin team email address)”.

The UUCR is submitted in all cases, whether or not the entry local authority wishes to transfer the young person elsewhere or retain responsibility for them. Regarding the applicant’s age the UUCR asks: “Does the young person have any documents to support their stated age and nationality? Does this young person require an age assessment? If so, what is your observation of his/her likely age?” (emphasis added). This is not requesting a formal age assessment and it is unclear how the Central Administration Team use the information in respect of transfer or decisions on treating the applicant as ‘significantly over 18’. Entry authority ‘observations’ will not meet the criteria of a lawful assessment and reliance by the Home Office on such ‘observations’ are also likely to be unlawful and would breach current policy under the Assessing Age instruction which require evidence that any age assessment from a local authority is case-law compliant.

The protocol states that ‘Where the age of a child is disputed (but accepted as being under 18 years of age) a Merton compliant age assessment will be conducted by the entry local authority if the unaccompanied child is not transferred or the receiving local authority if they are transferred.’ A problem arises when the entry local authority perceives that the child might be over 18. In one case, the entry authority thought the child was over 18 but wouldn’t assess because they were hoping to transfer, but it was too far for the receiving authority to send two social workers to conduct an assessment, so the young person was left in limbo. Similarly, one local authority and SMP in the same area said that they would not accept a transfer request where there was a doubt about age.

This places children who are disputed as potentially over 18 in a double bind. They must first go through an age determination procedure, which may take months and if found to be under 18 are then moved away under transfer having already spent a considerable period of time in the entry local authority. The delay in these cases is in-built, and entry local authorities are those which by their nature will have a large number of children to assess.

6. Contact with relatives and family members

Children may have family members or relatives in the UK. In some cases, children are brought to the UK under the provisions of the Dublin III Regulation that provides for the reunification of unaccompanied asylum seeking children with family members or relatives, where it is in their best interests. If a child is reunited with relatives, then they must be able to care for the child, although there are instances where these placements breakdown. Where a child is joining a family member (sibling or parent) then there is no requirement that they live together. This has given rise to confusion about whether these children should be part of the NTS. There are strong best interests principles that they should remain in the same area as a family member. The Care Planning, Placement and Case Review statutory guidance requires a local authority caring for a child to facilitate contact with parents and siblings. Where a placement with relatives breaks down, it is also likely to be in a child’s best interests that they remain in the local authority where they have been living, rather than being entered into the NTS.

In addition, there are children who enter the UK clandestinely but who have family relationships in the UK. The transfer form does encourage information about these family members to be shared but this does not mean that children will be moved closer to their family members. In one case, a child with an older care-leaver sibling in West London was moved to Wiltshire. He was told that contact would continue, but that it was for his older brother to arrange. This places an unacceptable financial burden on a care leaver, and increases distress and mental health difficulties to the younger sibling who has been moved away.

Where contact with a family member or relative, or a move to be near them is assessed as not being in a child’s best interests, an adequate explanation is required for these children.

7. Funding

There are concerns that the true cost of supporting those unaccompanied children in the receiving authority is not met by the Home Office funding through the voluntary scheme.5For a detailed overview of the funding shortfall see East Midlands Councils, ‘Analysis of Local Authority costs incurred in
support of Unaccompanied Asylum Seeking Children in the East Midlands’, July 2017, at
http://www.emcouncils.gov.uk/write/828_Analysis_of_LA_Costs_-_July_2017.pdf
This means that local authorities are having to fund places out of their already stretched resources, in particular the additional costs around travelling to legal advice, or paying for interpreters. It also does not include the support provided by local organisations and support services that have had to provide support where there has been a delay or lack of services in the local area. Some local authorities have estimated that the Home Office funding is only meeting around 50% of the true costs of supporting an unaccompanied child under the NTS.

8. Expansion of the scheme

The enabling regulations under section 73 of the Immigration Act 2016 for the National Transfer Scheme to be rolled out to the devolved nations of the UK have yet to be laid. Whilst no detail was provided in the Act for how the scheme would operate in Scotland, Wales and Northern Ireland, the legislation was explicit that no powers would be conferred on Ministers in these countries.

The briefing identifies significant issues surrounding the provision of legal advice, ESOL, mental health care, and interpreting services to young people in England. In Scotland, all of these matters are devolved to the Scottish Government and not within the competence of local authorities. Furthermore, unaccompanied asylum-seeking children in Scotland are treated as looked-after and the Children and Young People (Scotland) Act 2014 Act now substantially extends their entitlement to aftercare support as care leavers. Unaccompanied asylum-seeking children also benefit from the provision of a guardian (s.11 Human Trafficking and Exploitation (Scotland) Act 2015. As such it is essential that the Home Office work directly with the Scottish Government to ensure that the transfer scheme is appropriately resourced and planned if young people are to be transferred outside of England to other parts of the UK.

Recommendations

Ensuring that the best interests of children lies at the heart of the National Transfer Scheme

Social Workers are entrusted with making the decision as to whether or when to transfer. These decisions should be made on the basis of the best interest of the child. The 0.07% formula is a way of working out how to share responsibility but must not override the best interests of a child who may need to remain in, or move to, a particular area to meet their needs.

  • A best interest assessment should be clearly stated as an ongoing process. Where there is delay in the transfer, the decision to transfer should be reviewed. The need to for ongoing assessment should be clearly signposted to social workers in the protocol and accompanying communications. The following paragraph could be usefully included in the protocol:

‘Social workers are responsible for reviewing the decision if a transfer has not taken place.
Weekly reviews of the decision may be necessary to ensure that he decision to request
transfer remains in the child’s best interests. If a child has not been transferred in 20 days a
more formal review of the care plan should take place, in line with statutory guidance’

  • Repeated reference to the possibility of social workers needing to defer transfer may work to undermine the need for expedient transfers. There may be some cases where delay is in the best interest of the child but the research of the RCC indicates that more often it is transferring children after a period of delay, which undermines a child’s best interest. Statements about the possible need to defer transfer for the best interest of the child should follow from a clear indication that it would normally be in the best interest of the child to transfer before they develop ties in the entry local authority.
  • Where a decision is taken to transfer a child, then the entry local authority should continue to provide assistance to the child until the transfer has taken place. This includes all the statutory duties in section 22 Children Act 1989 and the Care Planning, Placement and Case Review Regulations 2010. The regulations and accompanying guidance include the obligation to prepare a care plan within ten days of placement, health-checks, the appointment of an IRO and independent visitor and timescales for these provisions. It is important that the care of a child is not distinguished by the imminence of their transfer, and that they continue to have access to the same services and support as all other looked after children.

Revisions to the NTS Protocol

The draft Interim Transfer Protocol contains some positive inclusions, including the embedding of trafficking guidance throughout the protocol increases the safety of these children. However, the protocol itself is quite unclear and a complex document to read, which increases the likelihood of errors, misunderstandings and missed time targets. Some of the most important information is captured in annexes, such as information on the best interest of the child.

  • The protocol must include clear references to the ongoing need for best interest considerations so social workers are clearer about their ongoing role within the process and to ensure that in the event of delays, decisions to transfer are reviewed (see above).
  • It should be explicit throughout the protocol that an expedite transfer will usually be in the best interest of the child.
  • The protocol should provide a flow chart with clear steps and timelines to ensure that all parties are clearer about the transfer process, their responsibilities and any timelines.
  • The revised protocol should make it much clearer that all the child’s needs must be take into account including keeping together peer relationships /friendships, as these bonds have frequently become deep and powerful, especially in the absence of family members. If the transfer is to be successful and minimise the risk of children going missing or leaving placements or struggling with mental health problems, then care should be taken to keep groups of children who are related or who are friends together where this is in their best interests. This requires a more detailed approach to the initial transfer request.
  • The UUCR needs wholesale revision. At present, it is a form which purports to assess social care needs in relation to transfer but instead focuses on asylum-related questions, which are inappropriate to ask at this stage, not relevant to the care planning process, and which have the potential to retraumatise children and jeopardise their asylum claim.

Improving implementation of the National Transfer Scheme

Many of the issues raised in this briefing relate to social work practice, and some of the issues highlighted apply in a more general sense to young people in the care system. It is hoped that the revised statutory guidance Department for Education guidance on unaccompanied children will strengthen the protection of this group and help ensure that social workers are clearer about their duties and how best to provide support. This guidance will more likely improve practice if complemented by adequate funding and high quality training for social workers in the local authorities to which these children are transferred.

In addition, information in the National Transfer Protocol and further communication to Directors of Children’s Services on the following issues may help ensure that the National Transfer Scheme functions well and in the best interests of children:

  • Ensuring that a best interests assessment is an ongoing process and in the event of delay or changes of circumstances, transfer is not pursued where it would not be in the child’s best interests and that a clear decision is made that is understood by all affected parties.
  • Ensuring that social workers are clear that they are the drivers for deciding if a transfer should go ahead or be halted at any time, and in the event of delays will want to review the decision to transfer to ensure it is still in the best interests of the child. Ensuring that the completion of the UUCR does not take the place of a care plan and that even if waiting for transfer children have access to the support and services they need
  • Adequately preparing children for transfer, including keeping others working with the child informed, including foster carers, youth workers etc.

Availability of legal advice

  • The Home Office should, through strategic migration partnerships, review the availability of legal advice in transfer areas on an ongoing basis.6Meeting with the Home Office & Legal Aid Agency, 1 March 2017
  • The Legal Aid Agency has considered issuing an Expression of Interest for existing providers in transfer regions so that they might be able to take on more matter starts, increase capacity and help deal with demand in that area. The RCC would recommend that this takes place as a matter of urgency.
  • While legal provision does not exist in every location to which unaccompanied children are transferred to, the LAA is able to encourage outreach by removing barriers facing legal providers looking to take on cases from further afield, such as the cost of travel. The RCC recommends that the LAA communicates widely and quickly about how controls can be relaxed.

Publication of data and review of the scheme

  • It is important that the scheme does not become embedded without an assessment of whether it is functioning as planned. This requires information that it is both alleviating the pressures on entry local authorities caring for large numbers, and that the scheme is operating in a child’s best interests. Robust data should be collected on transfer timescales, the age of children at transfer, and potential impact on asylum claims. A year on, the RCC would strongly encourage an independent assessment of the National Transfer Scheme and for the setting of standards by which the scheme will be assessed on an ongoing basis.
  • There should be ongoing monitoring of the scheme while it remains voluntary, and an evaluation which can demonstrate its value and ongoing purpose. This is particularly important in light of the withdrawal of some local authorities from the scheme.7http://www.nottinghamshire.gov.uk/DMS/Document.ashx?czJKcaeAi5tUFL1DTL2UE4zNRBcoShgo=2FY0EGizvWYeF%2F5wiwEvhlMRqv37Y9o%2FnHMxkhScH%2BMDJG0pt594lg%3D%3D&rUzwRPf%2BZ3zd4E7Ikn8Lyw%3D%3D=pwRE6AGJFLDNlh225F5QMaQWCtPHwdhUfCZ%2FLUQzgA2uL5jNRG4jdQ%3D%3D&mCTIbCubSF
  • Information on the locations for transfer, shared between government departments and relevant NGOs, will enable those who provide services to this group of children and young people to plan their activities and develop better responses to children who are transferred. For example, the East Midlands Strategic Migration Partnership costs report highlights the important work undertaken by NGO partners to provide welcome groups, orientation and other forms of support.8East Midlands Councils, ‘Analysis of Local Authority costs incurred in support of Unaccompanied Asylum Seeking Children in the East Midlands’, July 2017 Better information sharing would enable organisations to secure ongoing funding, given that charitable trusts often provide funds in advance and for up to three years. If a sustainable support network is to be built around groups of young people and children, then the communities where they are living need to be given as much information as possible in order to plan this.

For more information, please contact Kamena Dorling, RCC Chair, at kamena.dorling [@] coramclc.org.uk

References   [ + ]

1. https://www.gov.uk/government/news/government-launches-national-transfer-scheme-for-migrant-children
2. Home Office, Department for Education and Department of Communities and Local Government, Interim National Transfer Protocol for Unaccompanied Asylum Seeking Children 2016-17, at
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/534258/Interim_National_UASC_transfer_protocol.pdf
3. Discussed in the National Asylum Stakeholder Forum Children’s Subgroup on 29 March 2015
4. Discussed in the National Asylum Stakeholder Forum Children’s Subgroup on 14 December 2016
5. For a detailed overview of the funding shortfall see East Midlands Councils, ‘Analysis of Local Authority costs incurred in
support of Unaccompanied Asylum Seeking Children in the East Midlands’, July 2017, at
http://www.emcouncils.gov.uk/write/828_Analysis_of_LA_Costs_-_July_2017.pdf
6. Meeting with the Home Office & Legal Aid Agency, 1 March 2017
7. http://www.nottinghamshire.gov.uk/DMS/Document.ashx?czJKcaeAi5tUFL1DTL2UE4zNRBcoShgo=2FY0EGizvWYeF%2F5wiwEvhlMRqv37Y9o%2FnHMxkhScH%2BMDJG0pt594lg%3D%3D&rUzwRPf%2BZ3zd4E7Ikn8Lyw%3D%3D=pwRE6AGJFLDNlh225F5QMaQWCtPHwdhUfCZ%2FLUQzgA2uL5jNRG4jdQ%3D%3D&mCTIbCubSF
8. East Midlands Councils, ‘Analysis of Local Authority costs incurred in support of Unaccompanied Asylum Seeking Children in the East Midlands’, July 2017

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Children and Social Work Bill http://refugeechildrensconsortium.org.uk/children-social-work-bill/ Thu, 22 Jun 2017 17:01:12 +0000 http://refugeechildrensconsortium.org.uk/?p=338 The Children and Social Work Bill was debated by Parliament in 2016-17. RCC briefings on the Bill included the following: a proposed amendment on care planning for the permanence and stability of migrant and asylum-seeking children in care a briefing on the impact of changes to leaving care provisions on former asylum-seeking young people.   […]

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The Children and Social Work Bill was debated by Parliament in 2016-17.

RCC briefings on the Bill included the following:

 

 

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Department for Education draft statutory guidance for local authorities http://refugeechildrensconsortium.org.uk/dfe-statutory-guidance/ Tue, 20 Jun 2017 13:19:43 +0000 http://refugeechildrensconsortium.org.uk/?p=350 RCC response to the Department for Education draft statutory guidance for local authorities: Care of unaccompanied migrant children and child victims of modern slavery. You can download a print-friendly copy of this consultation response here. The Refugee Children’s Consortium (RCC) is a group of NGOs working collaboratively to ensure that the rights and needs of refugee […]

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RCC response to the Department for Education draft statutory guidance for local authorities: Care of unaccompanied migrant children and child victims of modern slavery.

You can download a print-friendly copy of this consultation response here.

The Refugee Children’s Consortium (RCC) is a group of NGOs working collaboratively to ensure that the rights and needs of refugee children are promoted, respected and met in accordance with the relevant domestic, regional and international human rights and welfare standards. Our membership includes leading children’s and refugee NGOs, bringing together a significant body of expertise in safeguarding and promoting children’s welfare including dealing directly with children who are refugees, migrants or seeking asylum.

Members who have contributed to or endorsed this response, including those with observer status, are listed at the end. Some will also have submitted their own response to the consultation.

We welcome the opportunity to comment on this draft and hope that it is useful for you to have some suggestions of amendments consolidated in this way. However, we must express our extreme disappointment in the particularly short timescale in which we have been asked for our views. Whilst some member organisations have had the opportunity to comment upon earlier drafts, many have not had this opportunity and even those of us that have seen earlier drafts would have appreciated more time to absorb the draft and form views to assist in its development.

Our comments are in two parts; overarching observations about the guidance and some specific comments relating to paragraphs which are referenced in line with the document.

General remarks

Whilst we appreciate that some of the guidance might apply in different ways to the different categories of child the guidance covers, at times there is an unhelpful focus on children whose vulnerabilities arise from their experience of being trafficked and less attention paid to the needs arising from the experience of being unaccompanied and having insecure immigration status. The latter group of children are frequently seen as less in need of protection and support as their trafficked counterparts by social work professionals, so it is particularly important to strike the right balance in the guidance. As the title used for the children covered by the guidance is quite long, it might be worth substituting ‘unaccompanied migrant children and child victims of modern slavery’ with ‘children covered by this guidance’ where it is not necessary to use the lengthy descriptor or to specifically mention one group rather than another.

As the guidance is primarily for professionals working in the field of child protection and safeguarding, we would advise a review of the terminology with the potential to cause confusion amongst that group. Words such as ‘status’ and  protection’ are used in both the immigration and children’s arena with different meanings, so additional explanations may be necessary in places; similarly children’s legal representatives, in this context, should be described as ‘immigration legal representative,’ as children may be involved in other proceedings for which they have legal representatives.

We were surprised to see the word ‘should’ used in many places in the document, rather than ‘must’ which appears only occasionally. As ‘must’ has the tone of compulsion, we would expect guidance issued under section 7 of the Local Authority Social Services Act 1970 to use the word ‘must’ to ensure professionals are clear as to its mandatory nature.

Comments on specific paragraphs (numbering reflects the paragraph numbers in the original document)

2. Replace ‘child victims of modern slavery’ with ‘unaccompanied children’. There is no evidence to suggest the latter group is less uncertain or unaware of their rights and whom they should trust, than the former group.

5. Add to the list of what this guidance should be read alongside

The Children Act 1989 Guidance and Regulations on Private Fostering

8. The first sentence must include reference to those seeking asylum and reflect their experiences, as well as those children who have been trafficked. e.g. the statement that ‘some will have been trafficked and may have witnessed horrific acts of violence’ could be expanded to add ‘some will have been persecuted and witnessed or been subject to horrific acts of violence’.

Definitions under the ‘unaccompanied child’ subtitle.

The statement that

Such children may have begun their life in the UK with family or with relatives, and for a range of reasons these care arrangements are no longer working

And the last paragraph, which reads

The circumstances of unaccompanied children may be that they have parents and family members who are not in the UK. Being unaccompanied is not necessarily a permanent status and may change, particularly if the child has other family members in the UK

should both be moved to be above the sub-heading ’unaccompanied asylum seeking child’ to make clear that these statements apply to both groups i.e. those seeking asylum and those not.

The definition of an unaccompanied EEA national child should be grouped with the other unaccompanied child definitions.

We also request that in all cases the word child is used before the word asylum i.e. ‘unaccompanied child seeking asylum’.

Definition of the ‘Best Interests’ principle

Whilst keeping the reference to Safe and Sound we recommend also referring to Annex 1 of the Interim Transfer Protocol as it has a fuller description of the Best Interests principle whilst remaining accessible and reasonably brief.

14. Delete ‘may be’ as a number of immigration outcomes is possible. Delete ‘including return to the individual’s country of origin’; it is accurate to reflect that different outcomes are possible without selecting one as an example.

15. Delete ‘the needs’ as this sentence currently reads as if it is the children’s needs that require specialist support, rather than the children.

16-24 Training and awareness

The section should include references to social work education and continued professional development and reflect the requirements for knowledge and skills relevant to all social work.

17. This paragraph would benefit from expansion, at least to explain that simply having a precarious or unknown status has an impact on a child’s vulnerability. It also reads as though the impact is on the process rather than on the child’s ability to engage, express their views and understand what is happening to them.

18. This paragraph is long and slightly overwhelming. It could be made into two paragraphs; one about the process (all elements included in his paragraph relate to the asylum process, not immigration more generally) and the other covering legal advice.

Paragraphs 25-31

The only comment on this section is that it is important to tell social workers that referrals to the NRM should be made without delay, being mindful of the need to involve children in the discussion of this referral, as failing to keep the child fully informed and engaged risks entrenching the feelings of powerlessness that these children are likely to experience.

35. The impression given in this paragraph is that children will usually be referred to the local authority by other statutory authorities (ports and police stations are mentioned). Many children are referred to a local authority by friends, voluntary agencies, legal representatives or by the child self referring; we still encounter difficulties due to misunderstandings from social workers. The very important message given in paragraph 10 could be usefully repeated here and social work professionals reminded that they must respond to a referral from any source. It would also be helpful to state in this first paragraph that children may enter the care system after some time of being in the country, including some who will have been in private fostering arrangements or after a family breakdown.

This paragraph also includes important advice about sharing a child’s information. Whilst it is useful to refer to the DfE information sharing advice, this is non statutory guidance, so it would be helpful to include reference to the Data Protection Act and its associated statutory code of practice. It would also be advisable to note that these children are unlikely to be able to give informed consent without an explanation of the implications of the sharing of personal information and that it is not good practice to ask children to agree to such practice without being fully satisfied that their consent is really informed.

The advice to take a photograph of each child and keep it on their file (currently in paragraph 50) is more logically placed in the assessment section of the guidance as it relates to an early part of the process.

36. This paragraph rightly mentions that all unaccompanied children are at risk of going missing, however the only example given is that children may be subject to ongoing exploitation. We would advise that the guidance either gives more examples, such as the fear of negative outcomes to a claim, or gives no examples because of the risk of leading professionals to think one is more important than another. At the least the paragraph should include a statement to the effect that there are many reasons why children go missing, including those that any child in care may experience e.g. dissatisfaction with placements or feeling their views are not being considered.

37 and 38. The second of these paragraphs rather undermines the message given in the first i.e. that indicators of safeguarding risks may not be apparent in the early stages, by specifically mentioning victims of modern slavery for consideration in the decision to refer to the National Transfer Scheme.

42. Without further signposting to appropriate guidance the end of this paragraph may be alarming to social workers. Whilst every care should be given to safeguarding children, it is very difficult to ensure that the interpreter is not linked in the way described.

44. We are concerned at the statement in this paragraph that ‘the assessment should seek to establish the circumstances which led the child coming to the UK’ without additional advice that this needs to be done carefully and sensitively and not necessarily in the first encounter with the child. Practitioners should be encouraged to establish a relationship of trust and they need to feel they can use their own judgement rather than feel obliged to ask for details of the child’s entry to the UK at an early stage. This applies to recently arrived children, who will have been asked these questions on arrival to the UK and those children who may have been brought here and do not understand the circumstances of their arrival.

46. We recommend rewording the order in this paragraph so that social workers understand from the outset that family reunification of many children, particularly those seeking asylum, will not be possible either whilst they are seeking asylum or if they are recognised as refugees. Planning for reunification with the child’s birth family must not precede inquiries made as to the safety of family members and is not the sole responsibility of the social worker. The paragraph should start by advising social workers that family tracing and reunification are very difficult and sensitive issues for this group of children, for a range of reasons.

Planning, protection and placement section

This section could usefully start by discussion of the best interests principle. Also use of the word ‘should’ in several paragraphs describe statutory duties so we would advise use of the word ‘must’ where possible.

52. We recommend an addition to the end of this paragraph to advise that as well as taking into account any developmental or learning difficulties, account must be taken of the child’s ongoing feelings of loss and bereavement as well as possible trauma and the effect this will have on their ability to engage, concentrate or even consider planning for the future.

61. The bullet point list in this paragraph is unnecessary here and not appropriate for this guidance. It is better placed in guidance that can explain the context and reasons for such actions and could be misconstrued here with dangerous implications.

67. Independent visitors must be provided with knowledge, training and ongoing support, particularly given they may be dealing with distressing issues and possibly forming relationships with children facing very difficult futures.

It would be useful to mention here that the Refugee Council Childrens’ Panel Advice Service is staffed by OISC registered advisers.

68. Replace ‘the extent of care leaver duties’ with ‘the provision of care leaver duties’ as this better describes the effect of Schedule 3 to the Nationality, Immigration and Asylum Act 2002.

70. The additional support that these care leavers may require is not restricted to those who have recently arrived in the UK. The lack of established social networks and/or access to members of their extended family to whom many care leavers turn at this time of transition needs to be taken into account.

We have refrained from further comment on the section Planning transition to adulthood as we understand it may need further revision on commencement of the relevant provisions of the Immigration Act 2016.

74. Given the large numbers of children that are waiting long periods not just for conclusion of their application but sometimes for the commencement of it, this paragraph could usefully advise that many children turn 18 having completed only the very beginning of the process.

75. This list relates solely to possible outcomes of an asylum application so the first sentence should reflect that.

The last sentence should specify that the plan for return can only be made once the child turns 18, as advice and assistance for children who wish to return whilst still a child needs much more careful consideration and planning than is mentioned here.

78. It would be useful to signpost social work professionals for more detailed information and advice relating to financial support for these care leavers as it is an issue about which member agencies receive many queries.

79. Please replace the word ‘adult in the penultimate sentence; if not with ‘young person’ at least with ‘individual’.

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Home Office asylum support review 2017 http://refugeechildrensconsortium.org.uk/asylum-support-review-2017/ Thu, 13 Apr 2017 09:20:03 +0000 http://refugeechildrensconsortium.org.uk/?p=396 We welcome the opportunity to inform the 2017 review of the level of asylum support cash allowance. A print-friendly copy of this submission can be downloaded here. Our comments relate to the 2016 Home Office report on review of cash allowance paid to asylum seekers. Comments are in two parts: overarching observations about the review […]

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We welcome the opportunity to inform the 2017 review of the level of asylum support cash allowance.

A print-friendly copy of this submission can be downloaded here.

Our comments relate to the 2016 Home Office report on review of cash allowance paid to asylum seekers. Comments are in two parts: overarching observations about the review and some specific comments relating to particular costs discussed in the review.

General comments

We are disappointed to learn that destitute people seeking asylum will continue to receive a cash allowance of just £36.95 per week. As explained below, we do not believe that this limited support enables people to meet their basic living needs.

As a consortium focused on promoting the welfare of children, we consider the needs of children in asylum seeking households to be as important as the needs of any other children. We believe that families seeking asylum should receive financial support that is commensurate with mainstream benefit entitlements. As such, asylum support provided under section 95 of the Immigration and Asylum Act 1999 should be in line with the benefit provisions from the Department of Work and Pensions and HMRC. At the very least, rates should never drop below 70% of mainstream entitlements.

Asylum support rates are predicated on the assumption that support will only be required for a short period, enabling people to survive on a temporary basis while their asylum claims are processed. However, Home Office decision-making is subject to significant delay, which means people are forced to rely on asylum support for many months, and often years.

Previous Home Office targets for handling asylum claims were two months for making an initial decision and four months for dealing with any appeal. The Home Office has revised its internal targets for making an initial decision on asylum claims to six months in ‘straightforward’ cases and to twelve months for cases it identifies as ‘non-straightforward’. Recent statistics indicate that the number of applicants waiting more than six months for an initial decision has increased by 143% in the last year to 8,825 applicants.1Home Office National Statistics, Asylum, October-December 2016 Moreover, this figure does not include the numbers of applicants awaiting the determination of their appeal.

The poor quality of initial Home Office decision-making on asylum claims further delays the recognition of refugees, increasing the length of time people need to rely on asylum support. The First-tier Tribunal (Immigration and Asylum Chamber) advised in September 2016 that immigration and asylum appeals are being heard within 12 months on average although some cases may take longer.2First-tier Tribunal (Immigration and Asylum Chamber), HM Courts and Tribunals Service, correspondence with the Immigration Law Practitioners’ Association of 21 September 2016 As such, Home Office delays and poor decision-making create circumstances in which people are required to cope for long periods of time on minimal support that is intended to be short-term.

In April 2017 the All Party Parliamentary Group on Refugees reported serious concerns about the high numbers of asylum decisions overturned on appeal, and recommended that the Home Office examines the reasons for the sharp increase in delays in initial decision making.3Paragraph 212, APPG on Refugees ‘Refugees Welcome? The Experience of New Refugees in the UK’ April 2017 It further noted evidence concerning the impact on mental and physical health and wellbeing of the current low rates of asylum support.4Paragraph 208, APPG on Refugees ‘Refugees Welcome? The Experience of New Refugees in the UK’ April 2017 The enduring effects of child poverty are severe and well documented, impacting all areas of life from educational attainment5Department for Education ‘GCSE and Equivalent Attainment by Pupil Characteristic: 2014 to life expectancy.6Office for National Statistics ‘Inequality in Healthy Life Expectancy at Birth by National Deciles of Area Deprivation: England’ 2015

Specific comments

In addition to the above comments, we are concerned that the costs of the following items have been calculated inconsistently, often in a manner that disadvantages families with children claiming asylum support.

Food

The decision to keep the cash allowance at the previous levels does not take account the significant rises in food inflation that have occurred over the last 12 months. With the Office for Budget Responsibility predicting RPI of 3.9% ahead of the Spring Budget7Office for Budget Responsibility ‘Economic and Fiscal Outlook – March 2017 and the Kantar Worldpanel, which measures like for like food purchases on an ongoing basis, seeing a doubling of its rate from 0.7% to 1.4% between January and February 20178Kantar World Panel ‘UK Grocery Market Grows as Price Rises Continues’ March 2017 the current asylum support rates will buy less and less food for families over the course of the year.

Some essential products like butter have increased by over 10%.

Healthcare

The cost of children’s medicines tends to be higher than that of generic adult medicines. As children are not allocated an increased budget for medicine, households with children are likely to spend more.

Clothing

The allowance of £2.60 per week for clothing is impractical. The review has allocated £134.94 for clothing per year by budgeting £2.60 per week. The expectation appears to be for people to save up for a full year before buying clothes. Clearly this is unworkable.

Whilst we acknowledge that additional allowances have been made for children’s clothing, from the age of 36 months the Home Office expects clothes to last for a full year. The NHS estimates that the average child grows nine centimetres between three and five years old,9National Institute for Health and Care Excellence so more frequent purchases are likely to be required as children grow.

Travel

The review confirms that children may need to travel to attend school. It states that children under five years travel for free, and children over eight may, in limited circumstances, be able to access free transport to school. However, it does not appear to acknowledge that young children will require a parent – who is not eligible for free transport – to accompany them to school. It is therefore likely that families with young school-aged children will spend significantly more than the allocated budget on travel.

The review allocates £4 per week for travel on the basis that this is sufficient to cover a return bus fare in ‘most’ areas in which asylum seekers are accommodated. In fact, the survey information covered less than 50% of areas in which people receiving s.95 support live. Moreover, crucial information on which the review appears to rely is missing from Annex C, which states:

It is possible to make a short return journey for £3 of less (using either a return ticket or 2 singles, and sometimes 3 short hops) in % of the towns and cities. This is down from 78% in June 2015

Clearly, vital information is missing from the review. However, it appears from the table of analysis conducted in December 2015 that the relevant figure is just 57%. Further, in our view more than one bus trip per week is likely to be required to enable basic communication needs to be met.

For the reasons outlined above, we are concerned that the decision to maintain the current rate of asylum support will leave children and adults unable to meet their basic needs, surviving for extended periods of time on insufficient funds.

References   [ + ]

1. Home Office National Statistics, Asylum, October-December 2016
2. First-tier Tribunal (Immigration and Asylum Chamber), HM Courts and Tribunals Service, correspondence with the Immigration Law Practitioners’ Association of 21 September 2016
3. Paragraph 212, APPG on Refugees ‘Refugees Welcome? The Experience of New Refugees in the UK’ April 2017
4. Paragraph 208, APPG on Refugees ‘Refugees Welcome? The Experience of New Refugees in the UK’ April 2017
5. Department for Education ‘GCSE and Equivalent Attainment by Pupil Characteristic: 2014
6. Office for National Statistics ‘Inequality in Healthy Life Expectancy at Birth by National Deciles of Area Deprivation: England’ 2015
7. Office for Budget Responsibility ‘Economic and Fiscal Outlook – March 2017
8. Kantar World Panel ‘UK Grocery Market Grows as Price Rises Continues’ March 2017
9. National Institute for Health and Care Excellence

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Closure of ‘Dubs’ relocation programme for refugee children http://refugeechildrensconsortium.org.uk/dubs-closure/ Fri, 17 Mar 2017 13:05:25 +0000 http://refugeechildrensconsortium.org.uk/?p=101 Separated refugee children are denied safe passage to the UK as the government closes the door opened by the 'Dubs' amendment.

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Separated refugee children are denied safe passage to the UK as the government closes the door opened by the ‘Dubs’ amendment.

The government has chosen to close a safe route for separated children seeking protection to come to the UK, under section 67 Immigration Act 2016. The ‘Dubs’ amendment required the Home Office to transfer children to England and Wales in consultation with local authorities.

We do not consider that the closure of the route offering safe passage to the UK for children who need protection under section 67 Immigration Act 2016 is justified. Section 67 does not have a statutory time-limit, and imposing an arbitrary one is not in the spirit of the amendment agreed by the government. Coming after earlier restrictions on eligibility according to age and nationality, the closure of the scheme suggests that the government never embraced the amendment as an opportunity to protect children at risk of exploitation.

Children on the move should be considered children first and foremost. They need protection, not only from persecution but also from the risks they face in fleeing persecution. Limiting access to safe routes for protection across Europe pushes the most vulnerable into the hands of the least scrupulous. There is growing evidence that failing to provide routes to move countries legally increases, rather than reduces, human trafficking and smuggling.

Human trafficking can flourish in the absence of alternatives and where the push factors of conflict, poverty and desperation remain. The Dubs amendment represented an opportunity to tackle human trafficking through providing an alternative to a limited number of children, and it is disappointing to see that the government is not committed to finding a safe route for even that small number.

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Statement on decision to award G4S contract to run new family detention unit http://refugeechildrensconsortium.org.uk/statement-g4s-detention/ Tue, 14 Feb 2017 18:59:29 +0000 http://refugeechildrensconsortium.org.uk/?p=383 Security company G4S has announced that they are to be awarded the contract to run the welfare services at the new family detention unit at Tinsley House by the Home Office. The new unit replaces Cedars pre-departure accommodation, where welfare services had been provided by the children’s charity Barnardo’s. The members of the Detention Sub-Group […]

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Security company G4S has announced that they are to be awarded the contract to run the welfare services at the new family detention unit at Tinsley House by the Home Office.

The new unit replaces Cedars pre-departure accommodation, where welfare services had been provided by the children’s charity Barnardo’s.

The members of the Detention Sub-Group of the Refugee Children’s Consortium are deeply concerned that, by placing G4S in charge of welfare at the new facility, the government has shown a complete disregard for the wellbeing of families and young people in detention. We find it unacceptable enough that, six years after the announcement that the government would end the detention of children, almost 100 children are still detained every year. That the wellbeing of those children will now be the responsibility of G4S is deeply troubling.

G4S has a terrible record in running youth detention centres and other facilities. In 2015, an Ofsted report found that G4S staff at Rainsbrook youth prison behaved “extremely inappropriately, causing distress and humiliation”. It found that “poor staff behaviour has led to some young people being subject to degrading treatment and racist comments.

G4S has also faced serious allegations of abuse taking place in its Medway Secure Training Centre, with seven staff members reportedly suspended in January 2016 after allegations surfaced that they were physically and emotionally abusing children. A G4S-run youth detention facility in Brinsford attracted the “worst overall findings” of any single prison inspected by former Chief Inspector of Prisons, Nick Hardwick. He recorded disproportionate use of force by staff, and some cells so unclean as to be unfit for occupation by detainees, all of whom were 21-years-old or under.

Detention is always harmful to the best interests of a child. The closure of Cedars, and the opening of a new unit within the grounds of Tinsley House Immigration Removal Centre have widely been seen as retrograde steps. Where families are held prior to removal from the UK, the wellbeing of children should be paramount. Considering G4S’s deplorable track record in caring vulnerable children and young people, even allowing G4S to bid for the contract to provide welfare services at the new unit demonstrates that the government does not consider the wellbeing of children to be its priority or concern.

The proposed operating standards for the new unit are lacking in oversight measures. Members of the RCC individually raised concerns during the consultation on those standards that have not, so far, been addressed. With G4S now taking on the contract for the new unit, it is vital that measures are taken to independently ensure the wellbeing of any child who is detained in the facility.

It is deeply inappropriate that G4S have been awarded the management of the facility, given their record of mismanagement and abuse.

We therefore call upon the Government, as a matter of urgency, to strengthen the oversight that G4S will be subject to in their role at the new facility.

Clear auditable standards must be well defined, and independent monitoring and guidance must be put in place to ensure that G4S are held to account in maintaining these standards.

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Access to Justice: briefing for Westminster Hall debate http://refugeechildrensconsortium.org.uk/legal-aid/ Mon, 09 Jan 2017 18:15:07 +0000 http://refugeechildrensconsortium.org.uk/?p=308 There is no automatic entitlement for children to access legal aid. For refugee, asylum-seeking and migrant children, their status in the UK means they are more likely to require legal advice for immigration or asylum cases, or to enforce other rights in the UK.

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Legal Aid

There is no automatic entitlement for children to access legal aid. For refugee, asylum-seeking and migrant children, their status in the UK means they are more likely to require legal advice for immigration or asylum cases, or to enforce other rights in the UK. Legal aid is available for adults and children under the Legal Aid Sentencing and Punishment of Offenders Act for asylum, dependent on a means and merits test, for victims of human trafficking who have a positive reasonable grounds decision and have not received a negative conclusive grounds decision, and to challenge the decision of a public authority, for example in an age assessment. However, even where legal aid is available it can be limited by lack of available providers, or the providers’ capacity.

Legal aid is not routinely available for cases that relate to a child’s family life, including former unaccompanied asylum-seeking children who seek to rely on the strength of their ties to the UK as young adults, or children in a family who wish to put forward a case on the length of time they have spent in the UK. Legal aid is not generally available for family reunion or citizenship applications, and there are no particular provisions for children to access legal aid.

Separated children

The lack of available legal aid providers is particularly concerning for children, who may have to travel a considerable distance in order to meet with their legal representative. Separated children are reliant on the local authority to ensure that they have access to a legal aid provider, or to fund legal advice where there is no legal aid available.

Case study

R, a Kenyan national, arrived in the United Kingdom aged 9 as a dependent on his father’s student visa. He was taken into care following domestic violence at home but the local authority did not take steps to regularise his immigration status until he was 16, when he was granted one year’s discretionary leave to remain. At 17 he could not find a solicitor to help him apply for further leave to remain, because there was no legal aid for this, and his leave lapsed. At 18 he was referred to Coram Children’s Legal Centre who helped R persuade the local authority to pay for him to see a solicitor. He was then able to make an application and received leave to remain on a pathway to settlement. He received three As at AS level and is currently applying to study at Oxford or UCL.

The National Transfer Scheme for unaccompanied asylum-seeking children may have a profound impact on access to justice for those children who are transferred to a different local authority. Access to high-quality legal advice is varied across the country; there are few immigration and asylum providers in some areas, with Suffolk reported to have no immigration providers. 1See Law Gazette, 18 April 2016, https://www.lawgazette.co.uk/news/legal-aid-cuts-creating-new-advice-deserts/5054789.article In December 2015, the Government reported on not-for-profit organisations and found the majority of legal advice was provided within London.2Ames, Dawes and Hitchcock, “Survey of Not-for-Profit Legal Advice Providers in England and Wales”, MOJ 2015 This matched the findings of the Justice Select Committee.3Justice Select Committee Eighth Report on the Impact of changes to civil legal aid under Part I of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, 4 March 2015 http://www.publications.parliament.uk/pa/cm201415/cmselect/cmjust/311/31108.htm

The decision to transfer is taken by the first local authority a child has contact with, where that local authority has an unaccompanied asylum-seeking child population of greater than 0.07% of the total child population, and it is in the child’s best interests.4See Interim National Transfer Protocol, version 0.8 http://adcs.org.uk/assets/documentation/Draft_National_UASC_transfer_protocol_v0_8.pdf However, an initial best interests assessment will not take into account whether there is sufficient legal advice available in any receiving local authority, as the assessment is conducted by the sending local authority without reference to where a child may be accommodated. Additionally, RCC members are aware of children who have already established relationships with lawyers who are then transferred to other parts of the country where they can no longer maintain the connection. One RCC member advocated for a young person who had an asylum lawyer in West London, but who was then told he was to be transferred outside London.

Asylum-seeking children are being denied the opportunity to present their case to its fullest. Even prior to the National Transfer Scheme, the Joint Committee for Human Rights commented that children were being denied access to justice and that the Government should commit to a review of children’s access to justice, in particular separated and trafficked children.5House of Commons Justice Committee (2015) Impact of Changes to Civil Legal Aid Under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act (2012). 8th Report of Session, 2014-2015

Children with families

Children who are part of a family unit may also struggle to access legal advice in order to enforce their rights. The lack of legal aid for Article 8 cases based on family and private life has had a clear impact on whether children are able to pursue their family life in the UK, or whether their case is adequately presented to the Home Office. The combination of a lack of legal aid, increased fees for applications and tribunal hearings may result in children being left in limbo without immigration status in the UK, negatively impacting on their right to healthcare, education and their sense of permanence and stability. They also limit a child’s ability to participate in proceedings which relate to them.6UNCRC, concluding observations of the 5th periodic review on the United Kingdom, June 2016 page 7 Children in families may also be in only loose family arrangements through kinship care, which can limit their access to legal aid and to family funds to pay for representation. The lack of routine legal aid to ensure that children have access to advice about their immigration status can exacerbate situations of exploitation or family conflict.

Exceptional case funding (ECF)

The exceptional case funding “safety net” is inadequate for those who apply. Although grant rates have increased following litigation, the number of applications made are still considerably below the numbers anticipated during the passage of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012.7See Legal Action Group, Justice in Freefall, January 2017 p10 http://www.lag.org.uk/media/278391/december-january_lag_report.pdf The application form for exceptional funding  is 14 pages long and requires the applicant to apply human rights and EU law principles to their case to establish the need for legal aid. This is an insurmountable barrier for most children, and the majority of applications are completed by solicitors,8PLP, Exceptional Funding: A figleaf not a safeguard, 2013 with only 20% made by individuals.9Legal aid statistics bulletin April-June 2016 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/556216/legal-aid-statistics-bulletin-apr-to-jun-2016.pdf However, given that a solicitor will only be paid if the application is successful, there is a further barrier to making an application particularly where a child’s case is complex or requires investigation. An FOI by an RCC member in February 2016 revealed that children make far fewer applications for exceptional case funding than adults, with only 20 applications being made by someone under 18 between October 2013 and September 2015.

Other costs

Access to justice is also impeded by other fees, including fees for immigration and citizenship applications, as well as fees to access courts and tribunals. The move to increase tribunal fees by 500% was met with severe criticism of the chilling effect on access to justice and has now been paused. The Government should be congratulated for acknowledging these concerns and including additional fee exemptions for:

  • Those in receipt of a fee waiver for the initial application;
  • Parents of children receiving support from local authorities;
  • Children bringing appeals where they are in local authority care;
  • Those appealing a refusal of asylum or humanitarian protection.10Statement from Rt Hon Sir Oliver Heald QC MP, 25 November 2016 https://www.gov.uk/government/speeches/courts-and-tribunals-update 

The RCC would like the Government to permanently halt disproportionate fee increases, and to commit to limiting fees to access the courts and tribunal services as well as maintaining the broader fee exemptions introduced.

Appeals from abroad

The “remove first, appeal later” provisions in the Immigration Act 2014, which were extended to include all immigration appeals by the Immigration Act 2016 have a damaging impact on access to justice by seriously impeding an individual or family’s ability to put forward a positive case. There are insufficient provisions for someone actually to attend their appeal, amounting to a wholesale denial of justice for those affected. The removal of an adult from a family pending appeal will cause severe disruption to family life, may limit the earning capacity of the other adult where there are children, and is damaging to children who are deprived of their parent. The removal of an entire family in these circumstances is a disproportionate interference in family life, particularly when considering the obligation in section 55 Borders, Citizenship and Immigration Act to safeguard and promote the welfare of the child. The RCC raised these objections during the passage of the 2016 Immigration Act.11See previous briefing at http://www.refugeechildrensconsortium.org.uk/files/RCC_ImmigrationBillHoLReportStage_Appeals_BestInterestChildern_Amendment114_FINAL.pdf Where someone is unable to afford to instruct a lawyer, it is unclear how they would be in a position to attend their appeal and effectively represent themselves.

Recommendations

  • It is critical that the Government review of the impact of LASPO 2012 goes ahead. This should include input from stakeholders, and should consider the impact on children’s access to justice.
  • A child rights impact assessment of measures which restrict access to court and tribunals through increases to fees and remove first provisions.
  • Restoring legal aid to children’s cases would cost an estimated £7 million; 12Based on data provided by the Ministry of Justice on 10 October 2011 in response to a Freedom of Information Act request made jointly by JustRights and the Children’s Society. the Ministry of Justice should urgently consider restoring legal aid to immigration and asylum cases involving separated children, which would cost an estimated £1.1m13Based on data provided by the Ministry of Justice on 10 October 2011 in response to a Freedom of Information Act request made jointly by JustRights and the Children’s Society.
  • The Exceptional Case Funding system should be made child-friendly, and there should be a presumption in favour of a grant for children’s applications.
  • Local authorities should promote access to legal advice for all children in their care, particularly where children have insecure immigration status, including applications which are not routinely funded through Legal Aid.

References   [ + ]

1. See Law Gazette, 18 April 2016, https://www.lawgazette.co.uk/news/legal-aid-cuts-creating-new-advice-deserts/5054789.article
2. Ames, Dawes and Hitchcock, “Survey of Not-for-Profit Legal Advice Providers in England and Wales”, MOJ 2015
3. Justice Select Committee Eighth Report on the Impact of changes to civil legal aid under Part I of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, 4 March 2015 http://www.publications.parliament.uk/pa/cm201415/cmselect/cmjust/311/31108.htm
4. See Interim National Transfer Protocol, version 0.8 http://adcs.org.uk/assets/documentation/Draft_National_UASC_transfer_protocol_v0_8.pdf
5. House of Commons Justice Committee (2015) Impact of Changes to Civil Legal Aid Under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act (2012). 8th Report of Session, 2014-2015
6. UNCRC, concluding observations of the 5th periodic review on the United Kingdom, June 2016 page 7
7. See Legal Action Group, Justice in Freefall, January 2017 p10 http://www.lag.org.uk/media/278391/december-january_lag_report.pdf
8. PLP, Exceptional Funding: A figleaf not a safeguard, 2013
9. Legal aid statistics bulletin April-June 2016 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/556216/legal-aid-statistics-bulletin-apr-to-jun-2016.pdf
10. Statement from Rt Hon Sir Oliver Heald QC MP, 25 November 2016 https://www.gov.uk/government/speeches/courts-and-tribunals-update 
11. See previous briefing at http://www.refugeechildrensconsortium.org.uk/files/RCC_ImmigrationBillHoLReportStage_Appeals_BestInterestChildern_Amendment114_FINAL.pdf
12, 13. Based on data provided by the Ministry of Justice on 10 October 2011 in response to a Freedom of Information Act request made jointly by JustRights and the Children’s Society.

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