Unaccompanied asylum seeking children

A Law Centre (NI) response

June 2007

1. About Law Centre (NI)

1.1  Law Centre (NI) works to promote social justice and provides specialist legal services to advice organisations and disadvantaged individuals from our two regional offices in Northern Ireland.  Our services are provided to almost 500 member agencies.  Five specialist lawyers carry out our immigration and asylum work and we facilitate the Immigration Practitioners’ Group which consists of lawyers and voluntary sector organisations from across Northern Ireland.

2 .  General Comments

2.1  In May 1999, Amnesty International dubbed unaccompanied child refugees the “invisible of the invisible.”  Eight years on, there is no doubt that unaccompanied asylum-seeking children represent one of the most unseen, marginalized and vulnerable groups of migrants.

2.2  Law Centre (NI) welcomes the opportunity to reply to the Borders & Immigration Authority consultation:  “Planning Better Outcomes and Support for Unaccompanied and Asylum Seeking Children.”  We note at the outset that the questions posed in the consultation suggest a disappointing agenda motivated more by cost-cutting, returns and removals than by child welfare.

3. Why Improvements need to be made

3.1  How might a system of placing young people with a limited number of authorities help to ensure consistency of service provision and aid specialist services?

Our greatest concern is that the main motivation for the changes does not appear to be the welfare of the children involved, but rather financial concerns and speeding up deportation processes.  Unaccompanied children seeking asylum are often some of the most difficult cases facing carers.  Often these children have seen or experienced, war, torture, imprisonment or the loss of loved ones.  For these reasons unaccompanied children seeking asylum deserve the highest levels of care.  Part of this process must include the ability to feel secure in the place they have settled, be it with a foster family or in care.  We would have concerns that regionalising these centres would destabilise children while the report seems to have no detailed scope for providing enhanced facilities to these, often traumatised, children.  We would also have concerns if unaccompanied children seeking asylum in Northern Ireland were, under this proposed policy, removed to centres in Scotland, England or Wales.  We have seen the devastating impact such removals have had on families and adults and would hope that the Government refrains from implementing such a policy for unaccompanied children seeking asylum in Northern Ireland .  We would therefore seek a reassurance that such an approach is not applied in practice.

3.2  What other factors need to be put in place to achieve improved delivery of services for unaccompanied asylum seeking children?

To achieve improved delivery of services to unaccompanied children seeking asylum the Border and Immigration Agency’s primary focus must be on the needs of the children.  It is regrettable that such an observation even needs to be made, yet in its focus on cost saving and efficiency this document often seems to put the needs of these children and the care they receive a somewhat distant second.  For example the proposal within the document to remove children from the care of their foster families when they turn sixteen, if they are seeking asylum, can only be based on a desire to cut costs at the expense of the welfare of the children involved.  Along with many other organisations, including the Refugee Council and the Children’s Society, we would argue that to improve the plight of many of these children, care needs to be provided certainly until they are eighteen, and in many cases beyond that.  In fact, social services policy and provision for UK children in care in other circumstances recognises the need for continued, targeted support and care well beyond the age of sixteen.  

In providing a better service for unaccompanied asylum seeking children we would recommend the following:

	The best interests of the child are to be treated as a primary consideration in any decision affecting the child (as stated in Article 3, UN Convention on the Rights of the Child 1989).
	Asylum-seeking children are children first and foremost and their applications must be treated with particular care (Children Order, NI; UNHCR Guidelines, 1994)
	Every refugee child must receive appropriate protection and humanitarian assistance whilst seeking asylum (Article 22, UN Convention on the Rights of the Child)
	The implementation of a guardianship system as required by the European Union Reception Directive, article 19, is overdue.  The Law Centre supports the call of the Separated Children in Europe Programme (SCEP) that every unaccompanied asylum-seeking child should have a responsible, trained and independent guardian to whom they may turn.[1]

While the numbers of asylum seeking children in Northern Ireland are relatively low to prevent those that do arrive falling out of touch with social services and potentially into destitution, criminality or into the hands of traffickers an organisation comparable to the Refugee Council’s Children’s Panel that would be able to direct these children to legal advisers and social security would be of major benefit.

4. Initial Assessment, including Age Determination

4.1  When a local authority decides to conduct an age assessment, should this take place before or after arranging the transfer to a specialist authority?

Law Centre (NI) would argue that the use of these tests is contrary to the stated aim of the consultation of putting the rights of the child first. We are also concerned by the proposal to utilise social workers to determine the child’s age.  This, we feel, will create a clear conflict of interest.  This will not help in providing security for unaccompanied children seeking asylum in the UK and my even drive some out of social work care.

Furthermore, if a child is assessed to be a minor, the Health and Social Care Trust has a duty to support and accommodate the child.  There is, therefore, a potential vested interest for Trusts to classify borderline cases as adults rather than giving them the benefit of the doubt.  Age assessments should best be carried out by independent experts, such as trained social workers acting independently, who have no interest in the outcome of the assessment.

The Law Centre recently acted in a case where an asylum-seeker claimed to be under eighteen, and needed to obtain proof of her age, which was disputed by the Home Office.  The Home Office wanted to proceed to treat the individual as an adult, and it was necessary for the Law Centre to instigate judicial review proceedings to ask for time for a full age assessment to be carried out.  That assessment confirmed that the child was a minor.

4.2  What might be a valid reason for refusal to undergo a dental x-ray or other medical examination to improve age assessment?

We believe that the increasing use of age assessment is symbolic both of an assumption of dishonesty by Border & Immigration Agency officials when dealing with unaccompanied children seeking asylum.  It is also part of an unfortunate on-going use of language and targeting of vulnerable migrants that panders to unsympathetic parts of society and reinforces unhelpful and inaccurate stereotypes.  It would therefore be better for the children involved to be spared this demeaning, damaging and often inaccurate process.  The Royal College of Radiologists has advised against the use of x-ray as a method of age assessment due to inaccuracy and the risks of using ionising radiation for non-clinical purposes.^[2]  Given the professional opinion of that body, the use of x-ray testing on unaccompanied asylum-seeking children is clearly contra-indicated and should not be under consideration.  Further, the Joint Committee on Human Rights in its recent, tenth report stated that “assessments of age should only be made in the context of an integrated examination of the child and no single measurement or type of assessment should be relied on.”^[3] 

The Home Office should also remember that often these children have escaped traumatic situations. In light of this to force on children an invasive procedure which may be inaccurate and may deny children the care they need, is a further form of punishment that goes against the spirit of the Convention on the Rights of the Child.  For these reasons we would recommend that the process of invasive age assessments be halted in the interest of the children involved.

The Law Centre has represented minors who have been through the age assessment process and commends the detailed process of interview, which we understand has been implemented in accordance with a draft protocol for age assessments in Northern Ireland . 

5.  Assessment of Need and Placement

5.1  When should the assessment of longer term care needs take place (either before or after transfer)?

We would argue that the correct way to assess the care needs of Children who have entered the UK alone seeking asylum is over time while the child is being cared for.  As noted above, Law Centre (NI) is not in favour of such children facing further turmoil and dislocation through being removed from Northern Ireland and therefore we would argue in favour of the assessment being carried out while the child is being looked after in care in Northern Ireland .

5.2  Should we generally encourage the move of those who have been fostered to other forms of support – in particular after they reach 16?

No. This measure would not be considered for those aged under eighteen who are not unaccompanied children seeking asylum, and therefore, if as stated, ‘Young asylum seekers, whether children in need or looked after children matter every bit as much as other young children in the context of meeting each and all of the five outcomes of the Every Child Matters Framework’ then they should be treated as such.  This move to house children aged sixteen and seventeen in shared housing, appears to be driven solely by cost considerations, with no explanation of why ‘the circumstances of unaccompanied asylum seeking children demand a different approach to indigenous children’.  What evidence is this claim based on, and why do such children, being removed from the UK , need less support, not more?

6.  The Asylum Application

6.1  In what other ways can care planning be better aligned to immigration considerations?

It is our conviction that immigration considerations should be framed around the provision of care.  The child should receive the care they need before consideration is given to immigration matters.  We would argue that this question highlights the disconnect between Home Office policy and its stated aim to treat these children comparably to indigenous children.

6.2  What further guidance is needed on managing the needs and expectations of unaccompanied asylum seeking children whose asylum claims fail?

Guidance relating to managing the needs and expectations of unaccompanied children, whose application for asylum has been refused, should respect the status of the individual as a child and have at its core the fact that the individual is a child and as such should not be treated as an adult in a similar situation. The guidance should ensure that the child has full access to independent legal advice and is fully aware of their appeal rights.  The guidance should also set out that children, particularly unaccompanied ones, should not be kept in removal centres and that alternative accommodation, suitable to their needs, be provided.

7.  Return to the Country of Origin

7.1  Should we develop new voluntary return packages for 16 and 17 year olds? If so, how could these be structured?

No.

7.2  Might an enhanced, but reducing, package encourage take up of voluntary return? If so, at what points should the package be reduced?

We would not be in favour of this option, including as it does, a degree of coercion on the recipients.

7.3  What safeguards need to be put in place before children can be returned to their country of origin on an enforced basis?

We believe that returning children, forcibly, to a place where they have experienced trauma, loss or other such factors that forced them to leave originally is highly questionable, morally, unless the situation in that country has changed so dramatically that the child is genuinely eager to return.

7.4  Who is best placed to work with the young person on the plan of return?

In cases where a child willingly wishes to return to their country of origin they should receive advice from independent legal advisors of their rights, and work closely with carers who can assess the child to ensure the child is ready for such a move and is doing so willingly and voluntarily.  For these reasons we would recommend that there be a good degree of distance kept from the decision and the process by Immigration Officials, who should only have an assisting role when called upon.

7.5  Should the service be procured from specialists and, if so, who?

Yes, please see answer above.  We would note there are many independent advisers who can assist on immigration matters, and as long as social workers are not tasked to act as secondary immigration officials (see our comments above regarding age assessment) they too should be able to fulfil a role as an independent advisor to the child.

7.6  What are the challenges for integrating this voluntary return package within the care planning process for children whose asylum applications have been unsuccessful?

We would note that question eleven refers to this return package as ‘enforced’.  We believe that unaccompanied children whose appeal for asylum has been unsuccessful be given full leave to appeal and that any voluntary or enforced removal be delayed until the child has had full access to justice.  We would note that given the high percentage of incorrect decisions made by the Home Office in relation to immigration matters it would be unwise particularly to rush a child out of the country without ensuring a correct decision has been made.

8.  The Specialist Authority Criteria

8.1  Are these the right factors that need to be addressed in identifying specialist authorities and are there any others?

We would argue that these factors are all relevant in identifying suitable authorities.  We would also re-iterate that we believe that children who have arrived in Northern Ireland unaccompanied and seeking asylum should not be removed from the jurisdiction where their needs and rights would be best served.

9. Numbers of Unaccompanied Asylum Seeking Children in Specialist Authorities

9.1  Is 50-60 the right number of specialist authorities to begin with? Does this strike the right balance, if not, please state why not.

Law Centre (NI) is concerned that in placing minors in a limited number of areas could seriously hinder the process of proper integration for these children and could also act as a focus for those who argue that such concentrations have a negative impact on the provision of local services.  We would argue that a more mature and productive approach would be to allocate sufficient resources to ensure that the needs of these children are met and they are not grouped together in some of the most deprived areas of the UK .