UK Children's Commissioners' Report to the UN Committee on the Rights of the Child

"The child's best interests are not a primary consideration in immigration decisions. Immigration control takes priority over human rights obligations to children seeking asylum and their families."

• Posted on Jun 11, 2008

[Published June 11th 2008, the four UK commissioners will be in Geneva 11 June to present the report to The UN Committee on the Rights of the Child

NCADC have extracted pages 31 to 32 that specifically deal with children seeking Sanctuary.
Download the full report

http://www.childcomwales.org.uk/publications/UNCRC_report_final_ENGLISH.pdf

Special Protection Measures

Article 22 (refugee children)

Asylum seeking and refugee children
152. Nationality and immigration, including asylum, is reserved to the UK Government and this can lead to tensions between legislation, policy and practice at devolved and non-devolved levels. Across the UK, children seeking asylum experience serious breaches of their rights. The Commissioners do not agree that the reservation to Article 22 of the UN C R C is necessary for effective immigration control and therefore welcome the Government's intention to review it. The child's best interests are not a primary consideration in immigration decisions. Immigration control takes priority over human rights obligations to children seeking asylum and their families.

Unaccompanied children seeking asylum
Recent changes to the asylum process
153. A new 'case-owner' based model for processing asylum claims was introduced in April 2007. While we welcome the faster decision making process, we are concerned that there may not be sufficient safeguards built in to the system for children. Since December 2007, it has been a requirement of the immigration rules to interview all children claiming asylum in their own right. Children need high quality representation, sensitive interviewing and should not be penalised for late disclosure of events they have found difficult to speak about.

154. In January 2008, the Government published proposals to reform the care and support of unaccompanied children.122 While welcoming the establishment of "specialist" authorities to care for separated children, we are concerned that, overall the rights gap between child citizens of the UK and children seeking asylum is significantly widened by the proposals. The Government is seeking to restrict entitlements to work, social security, leaving care support and access to education for separated children whose claims are not initially successful. There is a clear drive to remove children whose asylum claims have failed or who have just obtained the age of majority at the earliest opportunity, with no mechanism for ascertaining whether this would be in their best interests or tracking their welfare after removal.

155. In addition, we are concerned about the following proposals:Unaccompanied children turning 16 being moved from foster placements despite the Government's intention to veto such moves for citizen children in care;
To curtail or remove discretionary leave to remain for those whose asylum claims fail. This may leave children without a legal status pending removal and will stop them from receiving a leaving care service, entering employment or receiving benefits once they reach the age of 18; and There is no clear agency responsible for the care of young people with no further right to remain and, as yet, no guidance on how they should be supported. This could potentially lead to large numbers of unaccompanied minors disappearing from the care system before they turn 18, leaving them vulnerable to exploitation.

Age disputes
156. Since 2004,40-45% of all those claiming to be unaccompanied asylum seeking children have had their age disputed (between 2,000 and 2,500 individuals a year). The majority of age-disputed cases remain unresolved a year later and the individuals concerned continue to be treated as adults. It appears that the policy of applying the "benefit of the doubt" to "borderline" cases is not being adhered to and an informal higher threshold is being operated by immigration officers. We strongly object to Government proposals to introduce dental x-ray procedures to establish the age of asylum applicants on the grounds that they are unethical, unlawful and cannot predict chronological age any better than non-invasive methods.

Guardians for unaccompanied minors
157. We disagree with the UK Government's assertion that a formal "guardianship scheme" is not necessary or that existing arrangements are adequate. Many asylum seeking children are not allocated their own social worker and while the Children's Panel of Advisers provides an excellent service in England, it has no statutory role and is unable to meet the demand for its services. A legal guardian should be appointed as soon as an unaccompanied asylum seeking child is identified and the arrangement maintained until the child reaches 18 or has permanently left the UK. Despite asylum policy being a reserved to the UK Government, the Scottish Government has begun to develop a new model for dealing with unaccompanied minors which is to be welcomed.

Care and support for unaccompanied children seeking asylum
158. In England and Wales, there is inconsistent care and support for unaccompanied children seeking asylum. Despite Government guidance recommending that separated asylum seeking children should be accommodated under section 20 of the Children Act 1989, many local authorities are either providing less comprehensive support under section 17 of the same Act or they are removing these children from care at 16 rather than looking after them until they turn 18. Such practices are discriminatory and these children are being removed from the care system without due regard to the law or their welfare. Local authorities report a lack of resources and outstanding immigration issues as barriers to meeting the needs of these children.126 Grants provided by central Government are insufficient to enable local authorities to provide appropriate care for unaccompanied asylum seeking children.

Issues primarily affecting children accompanying adult family members
Support
159. Adult asylum seekers receive 70% of the level of social security benefits available to UK citizens. This will inevitably have a detrimental impact on any children involved particularly where the claim remains unresolved for years and the parents are prevented from working. Asylum seekers who give birth to a first child after the final refusal of their application will be placed on section 4 ("hard case") support. This takes the form of accommodation and vouchers for food and toiletries to the value of 50% of the basic income support level. This does not provide sufficiently for basic living needs. Recently introduced rules now allow for the provision of essential travel costs. In Wales, no section 4 support is available and families have to move to England.

Legacy cases
160. The Borders and Immigration Agency review of legacy cases should be completed as soon as possible to end the uncertainty and stress for families who have no decision on their asylum claim. The rights of the child must be taken into account during this review and consideration given to the length of time that a family has been in the UK. There are around 400,000-450,000 legacy cases in the UK, In Scotland, there is a very high proportion of families with children within the asylum seeking community.

A welcome speeding up of the review of legacy cases involving children has resulted in a substantial number of the 1,450 cases being approved. Whilst precise figures are not available, it is understood that the approval rate for this group has been around 90%.

Access to further and higher education
161. We welcome the Scottish Government's decision to support access to higher education for children seeking asylum who have attended Scottish schools for three years. We question why this cannot be implemented across the UK where children seeking asylum (in families or unaccompanied) have very limited access to further and higher education.

Detention
162. Children and their families are being detained in significant numbers. In 2005, 1,860 children in families were detained using immigration powers. We are very concerned at the duration of detention for children arising from both single and cumulative spells in detention. Contrary to international human rights standards, detention of children is often not used as a measure of last resort or for the shortest possible time and does not occur only in exceptional cases. There is no judicial oversight of decisions to detain children and their welfare is not adequately considered when decisions to detain or continue detention are made. Of particular concern is the prevalence of mental health problems exhibited in detained children, and their inability to access mental and wider health services during detention.

163. A significant percentage of children detained are later released on bail or granted temporary admission, raising a question over the quality of the initial decision to detain or the ability of the Government to effect removal. In Scotland, an asylum seeking child may only be detained for a maximum of 72 hours. Consequently, children are transferred and detained elsewhere in the UK. This leads to separation from legal advice and support networks. We have serious concerns over the conditions under which these transfers are made and their duration.

164. While it is Government policy not to detain unaccompanied children seeking asylum except in exceptional circumstances, concern remains that age-disputed applicants continue to be detained and removed without receiving an independent age assessment.

Removals
165. The Commissioners are concerned about removals involving children, including the disproportionate use of force by immigration enforcement officers and the impact such removals have on the mental and physical well-being of children. The Scottish Parliament and the Scottish Government have declared their opposition to "dawn raid" removals. Adequate risk assessments are not carried out and decisions are not based on the best interests of the child but on the efficacy of the removal operation. We are also concerned about ensuring that the removal takes place at appropriate breaks in the child's education; that the current physical and mental health of the child and their sUitability for travel should be assessed; and that children's own concerns are heard and that there are no outstanding child protection or medical issues.

Health care
166. Recent regulations in England extend charging for N H S secondary health care (that is, hospital care, mental health provision) to refused asylum seekers. These have had a particularly adverse effect on pregnant women, some of whom are being denied access to maternity care unless it is paid for in advance.

Additional issues of concern
167. Other issues of concern include:
Children entering the UK on false documents being prosecuted for fraud;
The lack of information provided to children about their rights and entitlements whilst in the UK;
The lack of access to quality legal advice and representation.
This is further threatened in England and Wales with the awaited implementation of changes in legal aid;

In England and Wales, the exclusion of immigration services from the duty to safeguard children under section 11 of the Children Act 2004. This is illustrative of the wider failure to treat children seeking asylum as children first and foremost; and

While the Government is not rolling out section 9 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004, which would withdraw all support, including accommodation, for failed asylum seeking families, we are concerned that the possibility for its use remains and it could be applied in individual cases.

Scotland
168. The UK Government often fails to give consideration to differences in Scots law. For example, the Home Office fails to take into account the different time scales for lodging appeals to the Court of Session when assessing time lines of appeals. In addition, immigration law can be used to override decisions made by the children's hearing system.

169. We welcome the piloting of a 'lead professional' in Scotland who will support the welfare of children at the end of the asylum process. However, we are concerned that these posts will have a limited information gathering role and will not be in a position to influence decision making.

Northern Ireland
170. The Commissioner in Northern Ireland is concerned that children and young people do not have a say in the asylum process. After an asylum seeking family have been in Northern Ireland for seven years, the interests of the child may be taken into account, but this is discretionary. The Commissioner is unable to intervene as her statutory remit does not extend to asylum seeking children.

Recommendations
R91 The UK Government should remove their reservation to Article 22 of the UNCRC.

R92 Detention should be used only as a last resort. The UK Government must explore meaningful alternatives to detention including other forms of supervision.

R93 The UK Government should undertake a thorough review of the current arrangements for determining age with a view to ensuring that unaccompanied children seeking asylum are treated as such and afforded their rights as children.

R94 The UK Government should ensure that children whose claims fail are only ever removed if it is in their best interests as ascertained by a UK appointed legal guardian.

R95 The UK Government should carry out an independent review of the children's segment of the new asylum process and no further changes to the leave policy should be implemented until this review has taken place.

R96 In England and Wales, all local authorities should provide unaccompanied asylum seeking children support under section 20 of the Children Act until they are 18.

R97 The UK Government should issue statutory guidance to the effect that all unaccompanied asylum seeking children should remain in the formal care system until 18.

R98 The UK Government should provide adequate levels of funding to enable local authorities to meet their legal obligations to asylum seeking children.

R99 The UK Government should develop a more flexible approach to allow unaccompanied young people to complete ed ucation and training courses, to avoid discriminatory treatment and to allow them to fulfil their potential.

R1 00 The UK Government should repeal section 9 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004.

Source for this Message:
Children's Commissioners
https://www.childrenscommissioner.org/adult/index.cfm
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