11. Memorandum submitted by the Children's
Society
The Children's Society has been working with
refugee and asylum-seeking children for the last 10 years and
our practice base stretches across England, including centres
in Manchester, Newcastle, Leeds, Oxford and London. In total we
work with around 50,000 children a year and refugee children are
one of the four groups of children that we prioritise, providing
support, advice and help to access services. Currently around
two-thirds of the refugee children we work with are unaccompanied,
with the remainder arriving with family or guardians.
INTRODUCTORY COMMENTS
Immigration policy and practice has become increasingly
restrictive towards the children and young people we work with
over the last 10 years. We would like to express the following
particular current concerns to the committee relating to those
involved specifically in the asylum system.
1. The granting or refusing of further leave
to remain in the UK.
3. Detention policy and conditions.
4. Section 9 (the use of destitution to control
immigration).
5. Immigration statistics.
The IND's stated aims are to regulate entry
and settlement in the interests of sustainable growth and social
inclusion, and to operate a fair, fast and effective asylum system.
The concerns outlined below demonstrate those aspects of immigration
control which undermine social inclusion, do not provide a swift
service to the most vulnerable applicants, subordinate the efficacy
of decisions to the desire to make decisions quickly and, by doing
so, undermine the effectiveness of the system.
1. GRANTING OR
REFUSING LEAVE
TO REMAIN
IN THE
UK
The restrictions on funding for legal work for
immigration and asylum, introduced in April 2004, have had a detrimental
impact on the children we work with. In our experience children
may have to put in asylum claims without assistance because they
can no longer find a solicitor. Unaccompanied minors can have
particularly complex cases by virtue of their age and vulnerability.
Their inability to access a solicitor—particularly for appeals—is
to the detriment of reaching fair decisions.
The emphasis on making decisions more quickly
has been very successful and faster decisions, where they are
thorough, are of great benefit to the children, young people and
families we work with by giving them greater certainty, regardless
of the outcome. However we are concerned about the high number
of cases that are overturned on appeal—nearly one fifth
(18%) of all appeals were allowed in the third quarter of 2005—suggesting
that decisions are not necessarily of high quality. In our experience
there are also a significant minority of unaccompanied children
who wait for excessive periods for a decision. We would welcome
some clarity from the IND about how they intend to address this.
The introduction a five year initial grant of
Indefinite Leave to Remain undermines other initiatives to promote
social inclusion. The children and young people we work with are
generally granted discretionary leave until the age of 18. If
this is renewed for three years after 18, they may then apply
for refugee status. This means that some young people may face
11 years of uncertainty about their future and through our work
we deal with the effects of this uncertainty, including strong
feelings of rejection, which can prevent young people from feeling
accepted into society. We do not consider it necessary to take
such a length of time to make a permanent decision on a claim
for protection.
2. APPEALS
We are particularly concerned that the appeals
provisions in legislation currently before Parliament (clauses
1 and 11) further restrict appeal rights for unaccompanied children.
Clause 1 removes the right of appeal against
a refusal to vary leave and will have disproportionately affect
unaccompanied and former unaccompanied children for whom an appeal
against the decision to extend their leave is currently their
only opportunity to raise their asylum claim before the Asylum
and Immigration Tribunal. Some of these children do not have a
right to appeal against an initial decision to refuse them asylum
on the basis that their leave to remain is one year or less. This
includes children from designated "safe countries" and
those given leave aged 17 until their 18th birthday. Their first
opportunity to appeal against a refusal of asylum is when they
are refused variation of their leave. These children will have
no substantive appeal if the measures are implemented, and their
only appeal will be against removal.
In addition Clause 11 provides that all support
will be cut-off when their leave expires. Unaccompanied children
can take a great deal of time to trust a legal representative
and facts may come to light late in the application process. Restricting
appeal rights does not ensure their claims can be heard fairly.
Combined with the difficulties accessing good quality legal advice,
at it worst, this will mean that some children do not have an
opportunity to articulate their claims for protection before they
are returned to their country of origin where they may face persecution,
(re)trafficking or loss of life.
To operate an effective asylum system the appeals
system must be geared towards those who comply with the system.
We are concerned that these provisions undermine that principle.
3. DETENTION
POLICY AND
CONDITIONS
There is a wealth of evidence that detention
of children is damaging and should not continue. [41]Although
guidelines state children's welfare needs should be assessed after
21 days in detention a significant minority of children are detained
for longer than this (in the snapshot taken in June 2005 15 of
the 70 children detained on that day had been held with their
families for between one and two months). [42]Children
seeking asylum are the only group of children in the UK who can
be deprived of their liberty without having committed a crime.
Children who are detained are removed from the stability of school
and friends and this can cause damage to the communities they
have become part of.
The conditions in detention centres are inappropriate
for children[43],
and detention centre and escort staff are excluded from Section
11 of the Children Act 2004 which gives them no requirement to
safeguard and promote the welfare of children despite coming some
staff coming into significant and regular contact with children.
In reality it is very difficult for families to abscond and practitioners
have expressed opinion that they are unlikely to do this. [44]We
cannot see any reason to detain families, and recommend the use
of tagging or reporting requirements where there are concerns
about the risk of absconding.
Age-disputed children are detained in adult
prisons while age assessments take place exposing children to
significant risk and violating a key principle of the United Nations
Convention on the Rights of the Child (UNCRC). This practice should
be ended. It cannot be the intention of government policy to inflict
harm on children, damaging them and colouring their prospects
of eventual integration into the UK.
We also have concerns about the removal of automatic
bail hearings for those in detention and that families are not
always informed about welfare assessments carried out after 21
days in detention. We would welcome a requirement that families
are kept fully informed about these assessments including the
process for conducting them and the outcome. We have also worked
with families who have grounds for complaint about their treatment
by escort and detention centre staff but have little outlet to
do this because Her Majesty's Chief Inspector of Prisons (HMCIP)
is unable to investigate or act on individual complaints and there
is no transparent mechanism for making complaints.
4. SECTION 9
Section 9 of the Asylum and Immigration (Treatment
of Claimants, etc) Act 2004 attempts to encourage families to
return voluntarily if their asylum claim has failed. It brings
forward the time when support can be withdrawn from families to
the point when their asylum claim fails. Previously support could
only be withdrawn when a family failed to comply with removal
directions. We consider this measure: unworkable—in that
local authorities are being asked to make human rights assessments
without guidance or training, ineffective—in that no family
has yet returned voluntarily under the pilots, and inhumane, as
it breaks up families and overrides the principles about the best
interests of children in the Children Acts 1989 and 2004. We are
very concerned about the use of destitution, particularly where
is concerns children, as a tool for maintaining immigration control
and do not consider it appropriate in a civilised country, nor
is it effective. [45]
5. IMMIGRATION
STATISTICS
We are concerned about the lack of data regarding
children within the asylum process and do not see how an effective
system can be established without this information. In particular
we are concerned about the lack of statistics about numbers of
children who are detained, and the length of time they are detained
for, apart from snapshots which do not provide a clear picture.
In addition we would welcome more use of the asylum statistics
to promote positive images of asylum seekers. The current emphasis
on falling asylum applications undermines social inclusion by
reinforcing images of asylum applicants as opportunistic and unfounded,
and gives the impression that large numbers of asylum seekers
come to the UK each year when in reality the proportion is low
compared to other countries—for example at the end of 2003
Britain was ranked eighth in Europe for the number of asylum applicants
per head of the population. [46]
FINAL COMMENTS
We would like to see more priority given to
the fairness of decisions. To summarise the above, this would
include:
— Re-instating funding for legal work
on unaccompanied children's claims, of more than five hours for
initial advice and four for appeals. There are various mechanisms
for this.
— We would welcome some clarity about
how decisions can be made more quickly in complex cases without
compromising their quality.
— The use of five year initial ILR
should be ended.
— The appeals provisions in current
legislation should not apply to unaccompanied children.
— Children should not be held in immigration
detention.
— Automatic bail hearings should be
reinstated.
— Families should be kept fully informed
about welfare assessments.
— A transparent and effective complaints
process should be established for those who are detained.
— We would welcome robust and regular
statistics on the number of children in detention and a more positive
use of existing data.
It is our view that children's welfare should
not be subordinate to maintaining an effective immigration system
where the two conflict, and that there is much more room within
the current system for both to co-exist, if the reforms outlined
above were implemented.
Lisa Nandy
Policy Adviser
6 December 2005
41 Crawley and Lester, No Place For a Child,
Save the Children, 2005. Back
42
As at 25 June 2005. Asylum Statistics. Home Office. Back
43
See successive reports from HMIP. Back
44
No Place For a Child. Back
45
Kelley and Meldegard, The End Of The Road, Barnardos, 2005. Back
46
Peach and Henson, Key Statistics About Asylum Seeker Arrivals
in the UK, ICAR, 2005. Back
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