Children seeking Asylum
Children seeking asylum are entitled to the same protection under international instruments (the 1951 Geneva Convention on the Status of Refugees and the ECHR) as adults. Further, Article 22 of UNCRC provides that refugee children should be entitled to additional protection. However, when ratifying the UNCRC the UK government entered a general reservation in relation to immigration and nationality.
The UN Committee has expressed serious concerns regarding the rights of asylum seeking children in relation to matters such as dispersal and access to health and education. These concerns have been echoed by other agencies
Consideration of the Asylum Claim
An Asylum Policy Instruction (April 2006) sets out the instructions to caseworkers in determining the applications from asylum seeking children. From April 2007 unaccompanied asylum seeking children (UASC) will have their claims considered under the New Asylum Model.
They will be initially assessed by one local authority and subsequently transferred to a ‘receiving authority’. Children who are not recognised as refugees will be granted Discretionary Leave until they are 17½ years old.
Where there is dispute as to the age of an asylum seeker claiming to be a child the local authority may be requested to determine a child’s age. This determination will be part of an assessment as to whether they are or may be a ‘child in need’. There is no statutory guidance as to how such an assessment should be carried out, but the assessment should comply with guidance given by the courts (R (on the application of B) v Merton London Borough Council).
A live issue at the time of writing is the methods that may be used in the future by immigration authorities in an attempt to determine the age disputes. Invasive methods (such as compulsory x-raying, for example) will have human rights implications for the individuals subjected to these procedures.
Under UK law accompanied children can be detained with their families for the purposes of examination of their asylum claim. Where children are detained a number of human rights issues arise, including those children’s rights of access to health and social care, and to education.
While administrative immigration detention has been found to be in accordance with Article 5 ECHR, it is worthy of note that its lawfulness has not been specifically tested in relation to children. Unaccompanied children whose age is disputed may still be detained in contravention of Home Office policy. It may be possible for a child detained in these circumstances to challenge their detention and claim damages from the government.
Immigration authorities are specifically excluded from those bodies obliged to have regard to the need to safeguard and promote the welfare of children. The Parliamentary Joint Committee on human rights has described this as ‘unjustifiable discrimination.’
It is understood that the government has conceded that (much as with children in the criminal detention estate) the Children Acts apply to children in immigration detention.
An unaccompanied asylum seeking child is entitled to support and accommodation from the local authority as a child in need. They may be accommodated under s.17 or s.20 (‘looked after’). If a child is accommodated under s.20 for a specific period, they become entitled to the leaving care provisions (see above).
The Children’s Commissioner has expressed concerns that local authorities are seeking to minimise the extent of their obligations to such children by accommodating them in such a way as to avoid incurring leaving care obligations. Such a practice is discriminatory and would be liable to challenge.
Children with their families will generally be supported by the National Asylum Support Service (NASS). However, if the parents are failed asylum seekers who have failed to leave the UK or to comply with removal directions, they are prohibited from receiving support from NASS, or any other support such as support from the Local Authorities under the Children's Act or the National Assistance Act 1948.
This can lead to a situation where Local Authorities are able to provide accommodation and support to the children of such a family but not to the adults. This could entail separating the children from their families, which could potentially be a breach of the right to family life under Article 8 of the European Convention on Human Rights. However, there is an exception to this prohibition of support - public authorities are not prohibited from providing support if such support is necessary to prevent a breach of the person's Convention rights. So if failure to provide support to the parents means that the family is separated and their article 8 rights are breached, there may be a legal duty on the Local Authority to provide support or to provide the means for the whole family to return to their country of origin.