Protecting unaccompanied asylum seeking children

Fidelma O’Hagan, immigration adviser at Law Centre (NI), sets out the main policies of the Border and Immigration Agency (BIA) in relation to unaccompanied asylum seeking children before focusing on children whose age is disputed by the BIA and the impact on their welfare.

The Border and Immigration Agency (BIA) announced on 25 Junean overhaul of the Agency’s policies concerning children.  There will be an amendment to the UK Borders Bill which for the first time will place a legal obligation on the BIA to keep children safe from harm with a duty to have regard to a new statutory Code of Practice when processing applications from children. This announcement is welcome specifically for those potentially traumatised and most vulnerable of children, unaccompanied asylum seeking children. Practitioners here are concerned at the increase in numbers of children seeking asylum without an adult responsible for them and anticipate that this rise will continue.

Unaccompanied children seeking asylum in Northern Ireland are the responsibility of social services and are thereby afforded the protection of a domestic care regime which incorporates the ‘best interests’ principle guaranteed by the UN Convention on the Rights of the Child (UNCRC). They should be assessed in accordance with a trust’s responsibility to assess each child as a child in need in order to determine their social welfare, health and educational support needs. In response to the increase in number, a trust has recently drafted a protocol which we understand deals specifically with the needs of these children and how best to facilitate them. This is a positive step forward by the trusts.

Apart from the issue of welfare provision, an unaccompanied child will be treated differently from an adult in a number of other very significant ways. The New Asylum Model (NAM) came into effect on 5 March 2007; all children who claim asylum after that date will be issued with a Statement of Evidence Form to set out in writing their claim for asylum. Immigration services also tend to rely on written representations from the representatives of children residing in Northern Ireland who claimed asylum before March 2007. A child has a lower tolerance to harm and is particularly vulnerable to trauma, therefore what constitutes harassment for an adult may cause psychological harm for a child. A child fleeing persecution may have limited knowledge of the conditions in the country from which she fled and possibly the very reason why her parents assisted her in fleeing her country of origin in the first place. She may therefore be unable to articulate exactly what her fear is or to identify the relevant reasons.

In recognition of these complex issues, paragraph 350 of Immigration Rules HC395 states; ‘in view of their potential vulnerability, particular care and priority is to be given to the handling of these cases’ and paragraph 351 continues that when processing an asylum claim ‘account should be taken of the applicant's maturity and in assessing the claim of a child more weight should be given to objective indications of risk than to the child’s state of mind and understanding of the situation. An asylum application from a child should not be refused solely because a child is too young to understand his/her situation or to have a well formed fear of persecution’. Further, paragraph 352 understands the need for a guardian to be present if the child is to be interviewed and that the guardian ‘cannot’ be an immigration officer, police officer or another officer of the Secretary of State. These rules recognise that there must be sensitivity towards the child’s welfare during the asylum seeking process, that there must be a difference of emphasis from that of a claim from an adult in the assessment of credibility when processing the asylum claim itself and that child specific factors must be taken into consideration when assessing that claim.

Under present policy, a child whose application is refused will generally be granted discretionary leave to remain until the child turns seventeen and a half years, or for three years, whichever is the shorter period of time.  The BIA has stated that it will not seek to enforce removal until the young person has turned eighteen unless satisfied that adequate arrangements are in place in the home country. It is worth noting at this point that the UK has a general reservation on the best interests principle contained in the UNCRC as it relates to immigration control. Therefore, such an assessment falls short of the requirement in the Convention. Once the child turns eighteen then he or she is subject to the same removal procedures as an adult without any such reassurances being sought.

The BIA has stated that, unlike adults, unaccompanied children ‘should not be detained unless in exceptional circumstances where there are safety concerns’, that it  should be no longer than overnight pending the involvement of social services and that detention must be actively reviewed after 24 hours. Taking all these factors into account, the importance of a child’s application being processed under proper procedures cannot be over estimated. Sadly children whom the BIA consider to be adults are being detained in adult removal centres, are not being assessed as children for their social welfare, educational support and essential health needs, and do face removal from the UK without any assurance as to reception facilities available on arrival back home. In comparison to the rest of the UK there have been a small number of ‘age dispute’ cases here, yet we are presently witnessing an increase and expect this to continue to rise as the nature of immigration control in Northern Ireland changes.

Under present policy, the BIA will dispute the age of an applicant who claims to be a child ‘but whose appearance and/or general demeanour strongly suggest that they are aged eighteen or over, unless there is credible documentary or other persuasive evidence to demonstrate the age claimed.’ (BIA emphasis). Immigration officers make this decision when they first see the child at the initial screening interview and the policy of giving the applicant the benefit of the doubt in borderline cases is not always applied in practice by staff on the ground. The representative is notified of this decision and any documentary evidence which supports the child’s claimed age should be lodged with the BIA immediately. However, evidence recognised by the BIA is a travel or other identity document or birth certificate. By virtue of the fact that an asylum applicant nearly always has to flee his or her home in great haste and at risk to his or her own safety, it is highly unusual to arrive in the UK with any of these documents. Therefore it is virtually impossible for children to dispute this allegation with the documents requested by the BIA.

Determining a person’s age between fourteen and eighteen years of age is not an exact science and there is no statutory procedure or guidance on how to conduct an assessment of a person claiming to a minor. However, in R(B) v Merton LBC [2003] EWHC 1689 (Admin), Justice Burnton issued ‘guidance as to the requirements of a lawful assessment by a local authority of the age of a young asylum seeker claiming to be under the age of eighteen.’ Other than in clear cases, it states that age cannot be determined on appearance alone, an assessment must be carried out based on personal history as well as ethnic and cultural information, social services must not simply adopt the decision of the BIA and the decision maker must give adequate reasons for a decision that an applicant claiming to be a child is not a child.

The BIA will in most cases accept a Merton-compliant age assessment from social services as evidence of age. A claim made after March 2007 under NAM provisions will be dealt with specifically as an disputed age case. In all claims made before this date, the BIA proceeds on the basis that the applicant is an adult until notified otherwise, thereby potentially denying a child the protection afforded by social services as well as a recognition of their experiences as contained in the immigration rules and policies referred to above. It is therefore essential that the proper assessment is carried out as quickly as possible. It is only recently that social workers in Northern Ireland have been trained to carry out complex Merton-compliant age assessments. Since then, in one case the Law Centre was involved in, a child has been properly assessed as being a minor, which the BIA now accepts and her claim is being processed accordingly.

The requirement for a holistic assessment in these cases was supported by the Westminster Joint Committee on Human Rights in its recent Tenth Report which stated; ‘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’. Yet, worryingly, in a recent consultation paper the BIA has suggested that applicants which it disputes as being children should undergo a dental x-ray or other medical examination to improve the age assessment process. This is despite the fact that 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.

To describe these children as potentially the most vulnerable and traumatised in our society is not to exaggerate their reality. Many have fled war torn situations, been trafficked to Northern Ireland under horrific circumstances and have had no contact with family members since being here. It is incumbent on the BIA , legal representatives, GPs and social workers to be aware of these issues through guidance and training. They must work together to ensure that these children are treated first and foremost as children and that their claims are processed properly. If a claimed age is disputed the matter must be resolved as quickly as possible through a holistic assessment carried out by experienced individuals.