56. Memorandum from the Children's
Commissioner for England on behalf of the Children's Commissioners
for England, Scotland, Wales and Northern Ireland
UK's reservation to the UN CRC
It is the view of the Children's Commissioners
that the UK Government should withdraw its reservation to the
UN Convention on the Rights of the Child.
All the UK Children's Commissioners have regard
to the United Nations Convention on the Rights of the Child (UN
CRC) in the discharge of their functions. The UK's reservation
to UN CRC is at the heart of the failure to secure the rights
of refugee and asylum seeking children across the United Kingdom.
Determination of age
It is the view of the Children's Commissioners
that the processing of an asylum claim should be delayed until
any age dispute is resolved and that there is an urgent need to
review current arrangements for determining age.
Many unaccompanied young asylum seekers arrive
without documentary evidence of their age. The asylum system and
the care regime they are subject to will depend on whether or
not they are found to be minors. Evidence suggests many children
are wrongly classed as adults. Being subject to adult asylum and
accommodation arrangements, they miss out on the protection available
to unaccompanied children.
Definition of unaccompanied status
It is the view of the Children's Commissioners
that there should be a consistent definition of unaccompanied
minors across the Home Office estate that fully reflects the EU
Definitions of "accompanied" and "unaccompanied"
are inconsistent within different parts of the Home Office estate.
Some do not accord with the definition in the EU Qualification
Directive. The definitions result in some children being exposed
to trafficking and leave others in inappropriate care arrangements
and unable to access social services.
Appointment of legal guardians
It is the view of the Children's Commissioners
that a guardian or advisor should be appointed as soon an unaccompanied
or separated child is identified and the arrangement maintained
until the child has reached the age of majority or has permanently
left the UK.
Social services departments do not always provide
appropriate care to unaccompanied minors. Decisions on the care
package are sometimes based on age rather than assessed need.
Some large "gateway" authorities are routinely "de-accommodating"
children in order to avoid incurring "leaving care"
costs. The grant arrangements whereby local authorities are reimbursed
by NASS appear to influence the levels and types of care, particularly
in decisions about fostering. Department of Health guidance on
appropriate care for unaccompanied minors is sometimes ignored.
Education and training opportunities
It is the view of the Children's Commissioners
that a more flexible approach to allowing unaccompanied young
people to complete education and training courses is needed to
avoid discriminatory treatment and to allow them to fulfil their
The majority of unaccompanied minors fail to
gain asylum, but are granted temporary protection until they reach
the age of 18. Entitlements to access employment, social and housing
benefits and a "leaving care" service beyond the age
of 18 are tied to the young person's immigration status at this
time. Current Government thinking appears to suggest that unaccompanied
children should not be encouraged to take courses leading to further
or higher education or training which may take them beyond their
18th birthday as they are unlikely to obtain permission to remain.
This is therefore discriminatory treatment as compared to citizen
children in the care system.
It is the view of the Children's Commissioners
that local authorities should have a duty to ensure that comprehensive
assistance is given to a young person who wishes to make an application
to extend their leave.
Not all unaccompanied minors are aware of their
right to apply to extend their stay; failure to do so means that
they are classified as "overstayers" with no further
entitlements. Emerging from the direct care of social services
and into mainstream benefits is made difficult by restrictive
rules and Home Office inefficiency. There is confusion over who
is responsible for the care of young people who have no further
right to remain. "Section 4" support, available to many
failed adult asylum seekers, is not generally available to those
who have previously had temporary protection as children. There
is no official guidance to local authorities on how or if these
young people should be supported. Many former unaccompanied minors
"disappear" at this stage and may be vulnerable to exploitation
and trafficking or are left unable to access benefits and housing.
Failed asylum and immigration
It is the view of the Children's Commissioners
that Section 9 of the Asylum and Immigration (Treatment of Claimants
etc) Act should be withdrawn from statute and the Government should
consider alternative ways of dealing with failed asylum claimants
to avoid breaching children's rights.
Section 9 of the Asylum and Immigration (Treatment
of Claimants etc) Act has been piloted in some areas but not
yet "rolled-out" nationally. The policy, if implemented,
may result in children being removed from their parents and placed
in care. This conflicts with the best interests principles that
are enshrined in children's legislation and the Convention on
the Rights of the Child.
Safeguarding and promoting the welfare of children
It is the view of the Children's Commissioners
that Section 11 of the Children Act 2004 should be extended to
include the Immigration Service, NASS and Immigration Removal
Section 11 of the Children Act 2004 imposes
a duty on an extensive range of authorities who deal with children
to have regard to the need to safeguard and promote the welfare
of children in the exercise of their normal functions. Excluded
from the list of authorities to whom the duty applies are the
Immigration Service, NASS and Immigration Removal Centres. This
undermines the intention of the statute to provide a comprehensive
Children in detention centres
It is the view of the Children's Commissioners
that families with children should not have their asylum claims
processed in the Detained Fast Track.
The current practice of detaining children in
Immigration Removal Centres is not compatible with various human
rights instruments including the Convention on the Rights of the
Child, the UN Minimum Standards and Norms for Juvenile Justice.
Children in families are most often detained at the end of the
asylum process, but are also detained pending examination of an
asylum claim. Detention of children for such administrative convenience
cannot be regarded as being a "measure of last resort".
Family removal policy
It is the view of the Children's Commissioners
a wholesale review of the current policy of detaining families
at the end of the process that considers the alternatives to detention
that have proved successful in other jurisdictions should be undertaken.
The current practices of removal to detention
without prior warning are severely damaging to children's wellbeing.
Finding a solution that recognises the needs of children will
mean a wholesale reappraisal of how failed asylum seeking families
are dealt with. The Government must now look seriously at alternatives
to detention including other forms of supervision and any future
policy should be designed with the UN CRC and the UN rules on
Juveniles Deprived of their Liberty (UN JDL) firmly in mind. Research
evidence on alternatives to detention is available from other
jurisdictions and show a way forward based on close contact and
International standards and judicial oversight
It is the view of the Children's Commissioners
that any decision to detain a child should be compliant with international
standards and subject to judicial oversight.
Detaining children is an extremely serious step
as there is evidence that it affects them adversely. Any such
decision must be fully compliant with international norms and
standards and should be subject to judicial oversight.
The Office of the Children's Commissioner and
the Commissioners for Scotland, Wales and Northern Ireland welcome
the inquiry by the Joint Committee on Human Rights into the human
rights issues raised by the treatment of asylum seekers in the
Although our four offices have differing remits
under separate legislation we all are bound to have regard to
the UN Convention on the Rights of the Child ("the CRC").
In the case of the Office of the Children's Commissioner, the
general function described above is set out in Section 2 of the
Children Act 2004. 
Our focus in submitting evidence to the inquiry
is on human rights concerns raised by the conditions encountered
by children seeking asylum in the United Kingdom and, in particular,
where these conditions appear to us to conflict with the obligations
imposed by the UK's ratification of the CRC.
We are well aware that in ratifying to the CRC
the UK Government entered the following reservation:
"The United Kingdom reserves the right to
apply such legislation, in so far as it relates to the entry into,
stay in and departure from the United Kingdom of those who do
not have the right under the law of the United Kingdom to enter
and remain in the United Kingdom, and to the acquisition and possession
of citizenship, as it may deem necessary from time to time."
The Government has argued that the reservation
does not inhibit the discharge of its obligations under Article
22 of CRC
which relates specifically to the protection and assistance in
the enjoyment of rights under the CRC (and in other human rights
instruments) by a child who is seeking refugee status. Our offices
have a deep concern that the maintenance of the reservation has
serious and practical effects relating to the enjoyment of Convention
rights by asylum seeking children and other children subject to
and should be removed. Our submissions to this inquiry focus on
1.1 Children seeking asylum in the UK
Children seeking asylum in the UK fall into
two groups. Some children are here with their parents, legal guardian
or other primary carer. These children are often referred to as
"accompanied" children. These children share the fate
of their parents in respect of accommodation, welfare support
and the provision of health services. They are also subject to
the same removal regime where the asylum claim is unsuccessful
including detention prior to removal. The legislative regime which
determines the conditions of stay for asylum seeking families
and failed asylum seekers is the Immigration and Asylum Act
1999 ("the 1999 Act"). The 1999 Act draws a distinction
between children whose parents are seeking asylum and other children.
The assistance to children generally contemplated by social welfare
legislation is largely ousted by the 1999 Act. In
addition, the Asylum and Immigration (Treatment of Claimants
etc) Act 2004 ("The 2004 Act") provides for the
withdrawal of all benefits from failed asylum seekers with families
following a process of certification by the Secretary of State.
The other group of children are unaccompanied
or separated children. In England and Wales they fall within the
scope of the Children Act 1989
("The 1989 Act") and are subject to a different care
regime and a different asylum determination process to their accompanied
peers. So far as their support is concerned, the legislative framework
does not distinguish between them and children who are not subject
to immigration control with the very important exception of the
"leaving care" provisions of the Act which are ousted
by the provisions of Section 54 and Schedule 3 of the Nationality,
Immigration and Asylum Act 2002 ("The 2002 Act").
The different legislative regimes applying to
children in families and unaccompanied children raise different
issues in relation to the enjoyment of CRC rights and we consider
their position separately in these submissions.
2.1 Age disputes
"The things I would change about the immigration
system if I could would be to change age disputes. When I came
into the country the immigration officer agreed that I was the
age I said but when I went to social services they said I wasn't
16. So I had to go to a doctor and my result came positivehe
said I was 16."Ahmed,
The quotation from Ahmed, aged 16, illustrates
the sense of "being wronged"a feeling experienced
by many young asylum seekers whose age is disputed either by social
services staff or by immigration officers.
Age is an important part of a human being's identity.
To deny part of a child's identity simply because they "appear"
to be older than they say may not be consistent with the State's
undertaking under Article 8 of CRC to respect the right of the
child to preserve his or her identity. Of course, this is not
to deny the right of the State to enquire into the age of an undocumented
asylum applicant but as Children's Commissioners, we are very
concerned that the current arrangements for determining age are
leaving many hundreds, and possibly thousands, of children unprotected.
The age that an unaccompanied asylum seeker
claiming to be a minor is thought or determined to be by the principle
agencies he or she encounters will have immediate and practical
consequences for his or her treatment whilst in the UK.
2.1.1 Determination of age by the Immigration
Paragraph 349 of the Immigration Rules defines
a child thus:
"In this paragraph and paragraphs 350-352
a child means a person who is under 18 years of age or who, in
the absence of documentary evidence establishing age, appears
to be under that age." (emphasis added).
In line with the Immigration Rules, immigration
officers will make a decision as to the age of a person claiming
to be a minor solely on the basis of his or her appearance. In
our view, this is at the root of the problem that inevitably leads
to many children's fundamental right to be treated as a child
As noted by the Royal College of Paediatrics
and Child Health:
"The determination of age is a complex and
often inexact set of skills, where various types of physical,
social and cultural factors all play a part, although none provide
a wholly exact or reliable indication of age, especially for older
The decision by an immigration officer at the
to dispute an applicant's age has the consequence that he or she
will enter an asylum determination system designed for adults.
This means the young person will have a more limited time for
returning details of the asylum claim, will be called for interview
at which there will be no public funding available to have a lawyer
present, will not benefit from the presence of a responsible adult
at the asylum interview and may be detained pending the asylum
decision. On the other hand, an applicant accepted as an unaccompanied
minor is subject to a more age-appropriate asylum determination
procedure, has a right to be accompanied to interviews and will
have his or her claim assessed by a specialist children's unit.
In addition, a young person in this position may not be detained.
The immigration officer's decision can also
determine the care regime the applicant is immediately subject
to. Where treated as an adult, the applicant, will be directed
to the National Asylum Support Service (NASS) for
accommodation and support or detained. Where the decision is to
accept the applicant as an unaccompanied child, he or she will
be referred for accommodation and support under the Children
Act 1989 to a local authority.
Although Home Office policy is for the immigration
officer to apply the "benefit of the doubt" in favour
of the applicant in "borderline" cases, the evidence
suggests that in practice this is frequently not adhered to. The
result is that a substantial number of asylum seekers who are
in fact unaccompanied children are excluded from the protection
of the domestic care regime which incorporates the "best
interests" principle guaranteed by the CRC. The evidence
for this lies in the annual asylum statistics which have included
information on age-disputed cases. Additionally, data collected
at the Oakington Immigration Reception Centre
provides information on the numbers of cases detained at the centre
on the authority of an immigration officer but subsequently found
to be minors following a social services assessment.
2.1.2 Detention of unaccompanied asylum seeking
Home Office policy is not to detain unaccompanied
children. This policy was not applied to age disputed cases until
a policy change, effective from February 2006, reduced
the discretion of immigration officers to authorise detention
in the "fast track" asylum processing regimes operating
at Oakington, Harmondsworth and Yarl's Wood removal centres.
Where unaccompanied minors are detained because
their age is disputed, there will be breaches of Article 37 of
the CRC. In particular, age disputed minors continue to be detained
alongside adults contrary to Article 37(c) of the Convention.
The method of selection for suitability for detention, relying
as it does on the discretion of an immigration officer (and not
subject to judicial oversight), may be considered "arbitrary"
contrary to Article 37(b).
In 2005, prior to the policy change, over 60%
of age-disputed minors detained in the "fast track"
at Oakington were found to be minors following an assessment by
Cambridge Social Services. This amounted to over 100 children
over one year at this centre alone. Despite
the welcome change in policy, the Children's Commissioners have
seen evidence that some children are still being processed in
the detained fast track. 
Unlike at Oakington, the referral of age-disputed
cases from Harmondsworth and Yarl's Wood IRC's to their respective
Local Authorities has not been documented. At these two centres,
legal representation is provided through a duty solicitor scheme
rather than by on-site legal representatives. Unlike at Oakington,
there are no regulated procedures in place for referrals to the
local authority and no statistics collected on how often this
occurs or on how long children remain in detention prior to assessment.
The detention of children in the "super
fast track" at Harmondsworth and Yarl's Wood is of particular
concern as there is a real possibility that children could be
returned to their country of origin without ever having had an
assessment to determine whether they are children. This is in
clear breach of Article 22 of the CRC.
2.1.3 The Annual Statistics
The Commissioners welcome the inclusion of data
on age disputed unaccompnaied asylum applicants in the 2004 and
2005 annual asylum statistics though the figures give cause for
In 2004, there were 2,990 asylum applications
from unaccompanied children accepted as such at the point of application.
addition, there were 2,345 applications from applicants claiming
to be minors whose age the Home Office disputed. 1,850 of these
cases were still recorded as "unresolved" on 10th June
2005. Age disputes may be "resolved" by either the applicant
withdrawing the claim to be a minor
or the Home Office receiving "credible evidence of age".
Unfortunately, the data does not tell us how many of the 495 "resolved"
cases were due to the Home Office accepting "credible evidence"
that the applicant was a minor as originally claimed.
2,965 applications were received from unaccompanied minors accepted
as such at the point of applying. In addition, there were 2,425
age-disputed applications. Of
these cases, 1,775 cases were still recorded as unresolved as
at 12 June 2006. There is no available data on the outcome of
the 650 "resolved" cases.
A significant gap in the information is what
happens to the "unresolved" cases identified in the
annual statistics. There is no duty on immigration officers to
refer age disputed cases to a local authority for an assesment
(although policy requires them to refer such cases to the Children's
Panel of the Refugee Council). Some will have approached a local
authority and been assessed as an adult. They may have been informed
that they have a right to approach a local authority by the Children's
Panel or by their immigration lawyer if they have one. Written
information on the right to approach a social services department
for an assessment was taken out of the letter issued to age disputed
applicants in February 2006. Where
a social services assessment concludes that the applicant is an
adult, they will have to be directed towards NASS for assistance.
The Commissioners are concerned that there are
significant numbers of age disputed cases in the "unresolved"
category which are simply being treated as adult cases and the
affected individuals are unaware of their entitlement to be considered
and treated as children. We provide some case studies illustrating
this at Annex 2.
2.1.4 Arrangements for establishing the age of
a disputed applicant
The burden of proving minority lies with the
applicant. Arrangements for ensuring that an age disputed applicant
is able to present "credible evidence" in support of
his or her claim as a minor are inadequate. For example, paediatricians
are treated with sceptisim by Home Office decision makers because
of the potential margin of error and are often rejected. Documentary
evidence such as birth certificates, sometimes obtained from the
home country at great risk, are regarded as unreliable and potentially
The evidence most readily accepted as a matter
of policy is a full assessment by a local authority social services
Despite this, the Home Office will sometimes dispute even this
evidence. The English Commissioner was made aware of the case
of a girl detained at Yarl's Wood and assessed twice by Bedford
Social Services as being 14 years old. Although released into
foster care, the Home Office continue to maintain that she is
an adult and is treating her as such for the purpose of her asylum
claim. We also know from local authority staff when they accompany
"in-country" applicants whom they have accepted as a
minor to a screening unit, the immigration officer will sometimes
refuse to accept their assessment.
2.1.5 Determination of age by a social services
A local authority must conduct an assessment
on a person who approaches them or is referred to them as a "child
in need". The requirement to assess age where this is in
doubt arises from the need to establish whether their duties of
the local authority under Part 3 of the Children Act are
There is no statutory guidance available to
social services departments to assist them to determine the age
of a person presenting to them as an unaccompanied minor. Anecdotal
evidence suggests there is considerable variation in practice
and the resources available for conducting such assessments between
different authorities. Similar anecdotal evidence from bodies
such as the Children's Panel suggests very different outcomes
to assessment interviews depending on which authority is approached.
The Children's Commissioners are concerned at
the potential conflict of interest inherent in the situation where
the body that is conducting the assessment will also generally
be the body that is responsible for meeting the needs of that
individual if found to be a child in need. Where resources are
stretched and budgets need to be balanced, these factors may influence
the decision making process. In addition, the lack of training
available to social workers in conducting these assessments can
mean that all sorts of cultural assumptions may be made in respect
of appearance and demeanour. Credibility may often be an issue
in these interviews even where the assessor's disbelief does not
relate to any fact pertinent to determining age. Despite the fact
that there is guidance from the High Court on the lawful conduct
of an age assessment by a local authority,
it appears that in many cases this guidance is ignored resulting
in high levels of judicial review applications to the courts.
The Children's Commissioners would like to see
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.
2.2 Inconsistent definitions of "accompanied"
and "unaccompanied" children which leave some children
"In all actions concerning children, whether
undertaken by public or private social welfare institutions, courts
of law, administrative authorities or legislative bodies, the
best interests of the child shall be a primary consideration."
(CRC, Article 3(1))
"State parties shall take appropriate measures
to ensure that a child who is seeking refugee status ... receives
appropriate protection and humanitarian assistance in the enjoyment
of applicable rights set forth in the present Convention ..."(CRC,
Article 22 (1)extract)
2.2.1 The definitions in use
The EU Qualification Directive
provides a comprehensive and widely accepted definition of an
"unaccompanied minors" means third
country nationals or stateless persons below the age of 18, who
arrive on the territory of the member states unaccompanied by
an adult responsible for them whether by law or custom, and for
as long as they are not effectively taken into care of such a
person; it includes minors who are left unaccompanied after they
have entered the territory of member states. (emphasis added)
The Asylum Policy Instruction (API), to which
Home Office decision makers have regard, gives the following definitions
and guidance on the difference between "accompanied"
"An accompanied child is: applying for asylum
in his/her own right and travelling with family or joining family
in the UK. Although the child may not be with parents we would
consider him/her to be accompanied if they are being cared for
by an adult who is responsible for them. This may be a private
fostering arrangement. If the child is being cared for by an adult
for a period of 28 days or more then the local authority should
be informed in order for them to assess the appropriateness of
"An unaccompanied child is: applying for
asylum in his/her own right and is separated from both parents
and not being cared for by an adult who by law or custom has responsibility
to do so. This definition is set out in the Immigration Rules
(paragraph 349-352 of HC 395 as amended)" 
Although the "formal" definition of
"unaccompanied" in the Qualification Directive and the
API are similar, the fact that the Home Office consider children
to be accompanied if they are being cared for by "an adult
who is responsible for them" as opposed to an adult who is
responsible for them "by law or custom" has significant
2.2.2 Consequences of the current definitions
Under the current arrangements, immigration
officers are only required to decide if a child has "an adult
responsible for them" when deciding on whether the child
meets the definition of an unaccompanied minor. They do not have
to have regard to whether that adult is responsible for them "by
law or custom". This facilitates easy processing but puts
children at risk in a number of ways.
The adult with them may be an older sibling
who is ill-equipped to be "responsible" for them and
may not have been prior to arrival. Furthermore, the older sibling
may be an "age-disputed" minor him/her self. There are
no arrangements to identify such cases and no duty on immigration
officers to refer to a local authority for an assessment.
The adult with them may be a trafficker. It
is unclear how the immigration officer might in practice establish
whether the child "is being cared for by an adult for a period
of 28 days or more" and yet it is only on that basis that
the duty to refer to a local authority is triggered. Were immigration
officers subject to the Section 11 duty,
the Commissioners believe that their vital role as gatekeepers
in the fight against child trafficking would be strengthened.
While the Qualification Directive recognises
that a child may become unaccompanied after arrival, the grant
instuctions to local authorities from NASS
note the following exclusion from the definition of an "unaccompanied
"Children who arrived in the UK in the care
of a parent or other adult or who arrived in the UK alone but
were subsequently placed in the care of a relative or family friend,
even in the event of a subsequent breakdown of this situation."
The Children's Commissioners are concerned that
some children who should properly be identified as unaccompanied
asylum seeking children in line with the Qualification Directive
will not be treated as such for the purposes of their care in
the UK because of the grant instructions. Local authorities may
decline to assume care for such children or create obstacles in
doing so because they are not currently reimbursed by NASS for
doing so. Evidence for this happening is attached in a case study
at Annex 3.
2.3 The care of unaccompanied minors
2.3.1 Responsibility for care; current and
The vast majority of unaccompanied asylum seeking
children are refused asylum but are granted a period of "Discretionary
For most children this is given until the age of 18 under the
part of the Discretionary Leave policy relating to unaccompanied
During this time, the responsibility for caring
for them lies with a local authority social services department.
The current arrangements are that the particular local authority
responsible for their care is the one where the child first presents
as "in need". A pilot scheme, whereby children arriving
in Kent are transferred to Manchester for their care, has recently
and is likely to act as a model for future care arrangements under
the "UASC reform programme".
Part of the rationale for the planned transfer
arrangements is the burden that is placed on the resources of
particular "gateway" authorities where the majority
of unaccompanied asylum seeking children arrive. The arguments
for new arrangements are very similar to those used when the National
Asylum Support Service was introduced for adults. Here, "dispersal"
was introduced to alleviate pressure on local authorities in the
South East of England where housing stock was also more expensive.
2.3.2 Care routes
Under the Children Act 1989, a social
services authority has a duty to provide services, including,
in some circumstances, accommodation for "children in need".
Accommodation without any attendant care package may be provided
to a child under section 17 of the Children Act. A "looked
after" service under section 20 is almost always going to
be the most appropriate care route for an unaccompanied child.
This was confirmed by guidance issued to local authorities in
Where a child has been "looked after" for a period of
time, they are entitled to a "leaving care" service.
There is no entitlement to a leaving care service for those "assisted"
with accommodation under section 17 of the Act. 
The Commissioners are concerned that many local
authorities continue to provide accommodation to unaccompanied
minors under s 17. It
is doubtful whether these decisions are based on the young person's
assessed needs but rather on the desire to avoid incurring "leaving
Some local authorities appear to be making decisions
on the care route based on age rather than an assessment of need.
Section 20 is provided to the under 16s and section 17 to the
over 16s. This may also impact on the local authority "age
assessment". Children presenting as under 16 may be assessed
as "under 18 but over 16". The practice of using age
rather than assessed need to decide which section of the Children
Act to offer assistance to children under 18 is unlawful.
The English Commissioner has recently been made
aware of a practice designed to avoid incurring "leaving
care" costs which appears to be operating in some local authorities
with the largest numbers of unaccompanied minors. The practice
consists of providing section 20 Children Act support initially,
but ceasing this before the child has been "looked after"
for 13 weeks, thus avoiding the duty to provide a leaving care
is hard to resist the conclusion that these decisions are financially
Similar consideration applies to foster placements.
Certainly for younger children and in many cases for older children,
the provision of a stable foster placement is the most effective
way of adjusting to the loss of, or separation from, their birth
family or customary carer. The lower level of grant provided to
the over 16s
means that local authorities are typically seeking to remove a
children from foster care and place them in less expensive accommodation
when they reach 16 irrespective of the child's wishes, needs or
best interests. Placing children into "semi-supported"
and usually shared accommodation leaves many children vulnerable
and open to exploitation by criminal gangs or traffickers.
The Children's Commissioners are concerned that
the arrangements for the care of unaccompanied asylum seeking
children are not always guided by "best interests" considerations
and that the requirement
that best interests are a primary consideration are sometimes
compromised by less compelling considerations.
2.3.3 The case for "guardianship"
The requirement in the CRC for the State to
provide "special protection and assistance" to a child
temporarily or permanently deprived of their family environment,
with the requirement to render "appropriate assistance to
parents or legal guardians in the performance of their child-rearing
requires states to create the underlying legal framework to secure
proper representation of an unaccompanied child's best interests.
We concur with the view expressed by the UN Committee on the Rights
of the Child that:
"States should appoint a guardian or advisor
as soon as the unaccompanied or separated child is identified
and maintain such guardianship arrangements until the child has
reached the age of majority or has permanently left the territory
and/or jurisdiction of the State ... The guardian should be consulted
and informed regarding all actions taken in relation to the child.
The guardian should have the authority to be present in all planning
and decision making processes including immigration and appeal
hearings, care arrangements and all efforts to search for a durable
The UK Government has resisted the argument
that UASC should be appointed a guardian on the ground that the
CRC requirements are adequately met through the arrangements for
care made under the Children Act 1989 which incorporates
the "best interests" principle. Along with this, the
Government points to the fact that all unaccompanied children
are referred to the Refugee Council's Children's Panel of Advisors
who are able to intercede on a child's behalf if necessary.
Whilst we have great respect for the work of
the Children's Panel, we would point out that this is under-resourced
and unable to allocate a named advisor for the majority of those
the Panel is not established on a statutory basis and does not
have the powers of a legal guardian even where it is necessary
to intervene to assist a child.
The Commissioners believe that the lack of guardianship
arrangements means that unaccompanied children are inadequately
represented in various situations. As noted above, decisions about
how a UASC should be "assisted" or "accommodated"
under the Children Act 1989 will have wide-ranging implications
for the level of care received. Typically, the decision on the
"care route" would take place at the stage of the initial
assessment of the child. Without guardianship representation at
such meetings, there is no realistic check on whether the best
interests of the child are guiding the decision making.
2.3.4 Leaving Care arrangements
"I have discretionary leave to remain. I've
applied for an extension. Not knowing what the decision will be
makes me worry. I want to apply for my next course so I can continue
my studies, but the college wants to know what my status is. You
want to plan your lifenot knowing what the decision will
be is a barrier." Maria, 18
An application to the Home Office to extend
the Discretionary Leave made before the original period of leave
expires, automatically extends that leave until a further decision
on the application is made. Where
the decision is to refuse to grant further leave, a right of appeal
is triggered. Once
the appeal has been finally determined or the time for appealing
expires, the young person becomes "appeal rights exhausted"
and reaches "the end of the line".
Even where a UASC has been "looked after"
until age 18 and received a "leaving care" service beyond
that, once a young person reaches "the end of the line"
he or she is no longer entitled to a leaving care service from
a local authority. 
2.3.5 Planning for "leaving care"
The uncertainties surrounding the outcome of
the immigration claim make planning for the future very difficult
for UASC themselves and for those charged with providing a service
to them under leaving care legislation.
The duties imposed on local authorities in respect
of "care leavers" (including UASC) include the duty
to prepare a "pathway plan" for transition to adulthood.
The pathway plan should detail what the young person intends to
do once he or she leaves care and the continuing involvement of
the local authority in helping the young person achieve his or
her goals. This can include the provision of accommodation and
financial support to assist with education, employment or training.
The final immigration decision is the "wild
card" in this planning process, but there is a growing body
of opinion within Government that the likelihood of ultimate refusal
should be taken into account when preparing the pathway plan.
This has recently been articulated as one of the four major themes
in the "UASC reform programme".
"UASC require different treatment from other
children in Local Authority (LA) care. This can be because they
require different services. But more particularly the reality
of their immigration status means that their adult life may well
be outside the UK and care workers need to take this into account
when formulating future education and care plans." 
The Commissioners have concerns about this approach
to the problem of planning services for UASC. The principle of
"non-discrimination" in Article 2 of the Convention
on the Rights of the Child applies in respect to all dealings
with unaccompanied children. In particular, it prohibits discrimination
on the basis of the child being unaccompanied or being an asylum
seeker. Whilst it is acceptable to differentiate the treatment
of UASC from other children "in care" on the basis of
different protection needs, the suggestion implied in the thinking
of the UASC reform programme may amount to less favourable treatment
on account of their immigration status.
In particular, we are concerned that academically
able children will be discouraged from pursuing courses of study,
such as A-Levels, which finish beyond the expiry of their leave
at age 18 or may be precluded from training courses that may equip
them for the future on the same grounds. Children may also find
themselves dissuaded from particular education or training options
only to find that they then obtain further leave to remain after
age 18. They will then have wasted a number of years which could
have been used preparing for entry into further or higher education.
We appreciate that the Government is in some
difficulty over this question. Allowing young people to acquire
qualifications of any sort during their stay in the UK may be
regarded as a factor that encourages unfounded applications for
asylum in order to access an education in the UK. This is not,
however, a reason for denying access to educational opportunities
to UASC on the same terms as citizen children and should not determine
Government policy as it now appears it may. At the empirical level,
we have seen no evidence of education operating as a "pull
factor" and the numbers of asylum applications from UASC
over the last few years have in fact been declining. In short,
the proposition that allowing access to education to those with
temporary permission to remain is acting as a "magnet"
for children to come here for the purpose of accessing education
The Commissioners would like to see a more flexible
approach from Government. The formulation of care and education
plans for UASC should be based on their needs and on their potential
as they should for any other looked after child. Dissuading children
at age 15, 16 or 17 from pursing particular education or training
options for which they are otherwise suitable because such options
may go beyond the period of their formal leave is both discriminatory
and fails to take into account their best interests which are
likely to be consistent with achieving educationally and obtaining
qualifications which are often recognised outside the UK and therefore
"transferable". It would in our view be preferable for
the Home Office to take into account the education and training
timetable of individual UASC and former UASC when "actively
reviewing" their application to extend their Discretionary
2.3.6 Arrangements for UASC awaiting a decision
on "further leave"
A UASC who has been granted Discretionary Leave
until 18 must make a further application to remain before the
currency of the original leave expires. If they fail to do so,
they become unlawfully present in the UK on the day that their
leave expires. Although most UASC do make such an application,
some are not aware of this requirement. There is no duty on a
local authority to ensure, as part of care planning, that the
"extension application" is discussed even though it
has a direct bearing on their future duties to the young person.
We are aware of a number of children who have failed to apply
to extend their leave and have consequently become unlawfully
present in the UK on their 18th birthday. A local authority has
no "leaving care duties" to young people over 18 who
are in this situation and are therefore "without leave".
Most USAC will not reach the "end of the
line" at the point described above. Rather, an "in time"
application for an extension of Discretionary Leave will be made.
The young person remains lawfully in the UK while the decision
is under consideration and, where refused, an appeal is outstanding.
They can continue to access mainstream benefits such as Income
Support (up to age 19 and if in full-time education) or Job Seekers
Allowance, have permission to work and are entitled to a "leaving
care" service from the local authority if previously "looked
after" for the requisite period.
In practice, many UASC come off "direct"
financial assistance from the local authority at age 18 and are
assisted either into work or onto the appropriate benefit. The
DWP operates certain rules which mean that it will often take
several months before a legitimate claim for support can be processed.
The rule requires that the "evidence" to be submitted
to the DWP as "proof" of entitlement is a receipt or
acknowledgement from the Home Office that the extension application
has been made "in time".
This routinely, perhaps inexplicably, takes
months during which time young people may find themselves without
funds or even borrowing from friends. We have noted cases of young
people becoming seriously ill with worry because of the delays
in the issuing of benefits. Some cut themselves off from friends
who have lent them money to tide them over because they are embarrassed
and cannot fulfil a promise to pay them back.
Furthermore, the barrier in accessing either
income support or Job Seekers Allowance (JSA) means that any claim
for housing benefit cannot be processed. We are aware of occasions
where young people have been threatened with eviction because
they have not been in receipt of housing benefit due to the delay
in processing their claim for income support or JSA. The OCC has
written to the Minister for the Department of Work and Pensions
asking that the evidential requirements be changed to allow the
submission of a copy of the solicitor's letter making the in-time
extension application along with proof of posting.
2.3.7 Arrangements for assistance to UASC at
the "end of the line"
Adult asylum seekers whose asylum claims fail
are, subject to certain rules, eligible for what is known as "Section
4" support. For
technical reasons relating to the definition of an "asylum
seeker" for support purposes, any
UASC who have their asylum claim "finally determined"
prior to their 18th birthday, would not in general be eligible
for Section 4 support. They would only become eligible following
a formal grant of Temporary Admission (which is not generally
given when leave expires) release from detention or release on
Local authorities dealing with former UASC who
are "end of line" seem generally unaware that there
is no power in law to assist them under Section 4 and are still
routinely referring such case to NASS for processing a Section
4 claim. The Commissioners' view is that the local authorities
who provided the support while the UASC were minors will retain
the duty to support and assist to avoid a breach of their human
rights until such time as they are removed from the UK (unless
the circumstances outlined in the previous paragraph pertain).
The Commissioners are concerned that many young
people are being put under considerable stress by the lack of
clarity as to who is responsible for their support at this stage.
There ought to be guidance issued by the Government to assist
local authorities fulfil their duties.
Finally, we would wish to make the Committee
aware that to our knowledge most young people who reach the "end
of the line" disappear from the radar of formal support arrangements.
It is clear to us that no "durable solutions" have been
found for these young people. We are concerned that so many young
lives are ending up being lived in the shadows where they are
vulnerable to exploitation and trafficking.
Far more work needs to be done to look at the
reasons why young people are not convinced that they can return
safely and to work with them where necessary to assist with re-integration
into their country of origin if the balance of interests is not
in favour of them remaining temporarily or permanently in the
3. CHILDREN IN
The Children's Commisioners have many concerns
about the treatment of asylum seeking children in families and
the effect on their human rights including levels of poverty,
access and enjoyment of education and access to primary and specialist
health care. However, we restrict our evidence to the Committee
on this occasion to three areas in which we have had particular
3.1 Section 9 of the Asylum and Immigration
(Treatment of Claimant's) etc Act 2004
3.1.1 The Section 9 regime
Prior to the 2004 Act, failed asylum seekers
with minor dependant children continued to be eligible for NASS
support until removal from the UK, even where their asylum application
and any appeal have been determined finally. 
Section 9 of the 2004 Act permits NASS to withdraw
support (including accommodation) from failed asylum seekers with
families. This follows a five-stage process ending in "certification"
that the person has failed "without reasonable excuse to
take reasonable steps to leave the UK voluntarily or place himself
in a position in which he is able to leave the UK voluntarily"
(eg by cooperating with re-documentation by the relevant embassy).
NASS support can be withdrawn 14 days after receiving such a certificate
if the family has taken no steps by then to depart voluntarily.
NASS informs the local authority of those in
their area whom they have certified. Local Authorities will still
be able to provide accommodation and support to the minor children
of such a family but not to the adults; this entails separating
the children from their families.
3.1.2 Conflict with the Children Act and the
The Children's Commissioners believe that these
arrangements conflict with accepted norms of good practice which
seek to preserve the bond between parent and child and also with
the "best interests" principle as enshrined in the Children
Act 1989 and the CRC.
The Children Act 1989 states that in
any action or decision relating to accommodation of the child,
the best interests of the child shall be the paramount consideration.
Under the Section 9 regime, social workers would be asked to separate
children from their families simply because Section 9 has ended
the lawful accommodation of the adult members of the family and
the family had nowhere to live. There are however considerable
legal barriers to them doing so.
A local authority cannot remove a child who
is under 16 from a parent who holds parental responsibility without
first obtaining the consent of the parents or obtaining a court
order. Significant difficulties would arise where the parent(s)
refuse to consent to the child(ren) being accommodated separately
The appropriate order in such cases would be
either an interim care order or emergency protection order. Where
a local authority attempts to obtain such an order, even on an
interim basis, it must show that it has reasonable grounds to
believe that the child would suffer or would be at risk of suffering
significant harm without such an order. In addition, they would
need to show that such harm was due to the care being given to
the child "not being that which is expected of a reasonable
parent". The fact that the family has nowhere to live as
a result of the failure of their asylum application, is unlikely
to fall within these grounds and thus the criteria for an interim
care order or emergency protection order would not be fulfilled.
3.1.3 Conflict with ECHR Article 3 in the event
of failure to provide accommodation to the family
On the other hand, the local authority would
be in great difficulty in attempting to provide accommodation
to the whole family following certification under Section 9. Although
it would be normal "best interest" practice for a local
authority to provide accommodation to a family who had no other
means of support under Section 17 of the Children Act, Schedule
3 of the 2002 Act, by virtue of Section 9 of the 2004 Act, specifically
prevents such practice in relation to assisting adults in a failed
asylum seeking family. 
By withholding support in the above circumstances,
the local authority is likely to render a family "destitute".
This may in itself breach the Article 3 ECHR "threshold"preventing
an authority from subjecting someone to cruel, inhuman or degrading
Although there is a "safety net" within
the Schedule for cases where a breach of human rights would otherwise
occur, it is a remedy that is unlikely to be in children"s
best interests as it only allows assistance to the extent necessary
for an avoidance of the breach. Designing legislation that places
children on the verge of, or at risk of, destitution is clearly
at odds with children's best interests as expressed in the CRC
and in all other Government policy towards children. It is simply
not good enough for the Government to say that parents are putting
their own children in this position by failing to co-operate with
removal. Because the Children Act 1989 states that in any action
or decision relating to the accommodation of the child, the best
interests of the child shall be the paramount consideration, Section
9 of the 2004 Act is in direct conflict and if allowed to remain
would undermine the Children Act itself.
The Commissioners cannot support legislation
that potentially makes children homeless. We note that the Government
has said that the Section 9 pilot will be evaluated and that there
will be no "roll-out" of the programme until the evaluation
is complete. We also note that the evaluation is taking a considerable
time which leaves the statute in force and a great deal of confusion
amongst local authorities and asylum seeking families. We urge
the Government to complete the evaluation and take a view on whether
Section 9 should then be removed from the statute book. The Commissioner's
would support such a view.
3.2 Section 11 of the Children Act 2004
3.2.1 An inclusive approach to safeguarding
When "Every Child Matters" was
published, it was widely believed that the title reflected an
inclusive approach to all children within the United Kingdom's
jurisdiction. Section 11 of the Children Act 2004 was therefore
a great disappointment to the Commissioners because key agencies
responsible for the welfare and support of refugee and asylum
seeking families were excluded from its provisions.
Section 11 imposes a duty on an extensive range
of authorities who have dealings with children, including the
police and prison service, to have regard to the need to safeguard
and promote the welfare of children in discharging their normal
also requires each person and body to whom the section applies
to make arrangements to ensure that "any services provided
by another person pursuant to arrangements made by the person
or body in the discharge of their functions are provided having
regard to that need." 
The exclusion of NASS, the Immigration Service
and managers of Immigration Removal Centres from the new duty
brings into question the effectiveness of the statutory provision
and associated guidance to provide a comprehensive safeguarding
framework for all children and young people. We believe that the
exclusions are already having an impact on relations between those
who are under the duty and those who are not. 
3.2.2 Exclusion of the Immigration Service
During debate on the Bill that became the Children
Act 2004 and later, the Bill that became the Asylum and
Immigration Act 2006, Ministers argued that the duty imposed
by Section 11 would impede the primary function of the Immigration
Service to enforce immigration control. The
Commissioners do not accept this position and furthermore believe
that the Immigration Service has a vital role in protecting children
in some areas of its operation.
Safeguarding the welfare of children at ports
has been highlighted in the context of the trafficking of children
earlier in this evidence and through recent research. Operation
Paladin Child at Heathrow airport identified
the issue of children and young people being collected from, or
brought in at ports by adults with particular claims to a relationship
with children. There is currently no duty for the Immigration
Service to investigate such relationships.
We applaud the Government's efforts to strengthen
the statutory framework for the protection of trafficked children
through the creation of new and specific offences in the Asylum
and Immigration (Treatment of Claimants etc) Act 2004. The
development of the cross-departmental trafficking toolkit is also
welcome. The toolkit emphasises the key role of immigration officers
in trafficking cases where they can assist in the identification
of victims and traffickers, provide initial support to victims,
refer on to social services, contribute to inter-agency profiling
of potential victims, identify and check on suspicious "relatives"
or sponsors and so on.
Without the statutory duty imposed by Section
11, the Commissioners believe that it is unlikely that the Immigration
Service will have the necessary impetus to integrate child safeguarding
procedures into its ordinary entry-control functions. As a result,
the Government's efforts to clamp down on trafficking will be
considerably less effective and many more children will be put
The enforcement functions of the Immigration
Service should also be subject to the duty. We do not accept the
argument that this would compromise the service in the discharge
of its normal functions. The statute does not require persons
and bodies bound by the duty to change its functions, but merely
to have regard to the need to safeguard and promote the welfare
of children in the exercise of such.
3.2.3 Exclusion of managers of immigration removal
The English Commissioner has reported on his
concerns for the welfare of children in Immigration Removal Centres
(IRCs) in his report on an announced visit to Yarl's Wood. The
Scottish Commissioner has also raised concerns following her visit
to Dungavel. Concerns regarding children's welfare have also been
reported by HMIP, Anne Owers, in numerous reports of removal centres,
most recently in her follow up visit to Yarl's Wood in which she
interviewed a number of children. The
Commissioners' views are that children should not be detained
other than as a matter of last resort and then only for the shortest
However, the current reality is that thousands
of children are detained each year. While that is the case children
are put at risk if there are not effective policies in place to
safeguard their welfare. The English Commissioner highlighted
some of these concerns in his report of a visit to Yarl's Wood
in 2005. A subsequent report by HMIP
highlighted ongoing concerns regarding, in particular, the procedures
for making child protection referrals. The parallel "cause
for concern" system in operation was described as "fundamentally
flawed and dangerous".
We have seen no coherent argument that extending
the Section 11 duty to managers of IRCs would compromise their
operations. Indeed, we firmly believe that it would strengthen
relationships with the local authorities, Local Safeguarding Children's
Boards and the other bodies with whom IRC staff may have regular
contact. We are aware of some improvements being made in respect
of the safety of, and conditions for, children in IRCs. We believe
that extending the Section 11 duty should underpin these improvements
and would hasten change.
3.2.4 Exclusion of NASS
The vast majority of families seeking asylum
are accommodated and supported through the National Asylum Support
Service (NASS), established under the Immigration & Asylum
Act 1999. NASS is also responsible for making decisions about
dispersing families to different areas of the UK, and for taking
into consideration the safeguarding of children in this context.
Emergency accommodation (ie accommodation prior to dispersal)
is provided through NASS. NASS caseworkers are involved in making
decisions about children's welfare in a number of different areas
including child protection, children's
and appropriate support for pregnant women and newborn babies.
supported by NASS thus come into contact with that agency and
in most cases will have no contact with social services. Ensuring
that NASS is under the same safeguarding duty as their statutory
partners would provide for better working relationships and greater
protection for children and their welfare.
3.3 Detention of children in asylum seeking
families and the removals process
3.3.1 Legality of detention of children under
In the OCC's report on an announced visit to
Yarl's Wood on 31 October 2005 the English Commissioner raised
concerns as to whether the detention of children was compatible
with international human rights instruments. In particular, consideration
was given to the extent to which detention and the conditions
of detention at Yarl's Wood were compliant with the UN Convention
on the Rights of the Child and the UN Rules on Juveniles Deprived
of their Liberty. Concerns had already been raised about immigration
detention of children by both the UN Committee on the Rights of
the Child and the European Commissioner for Human Rights, as
well as by the Inspector for Prisons, Anne Owers, in her first
report on Yarl's Wood.
Article 37(b) of the UN Convention on the Rights
of the Child
requires that deprivation of liberty shall only be used as a measure
of last resort and for the shortest appropriate period of time.
This provision is also to be found in the UN Rules on Juveniles
Deprived of their Liberty (UN JDL), which
are part of the UN Minimum Standards and Norms of Juvenile Justice,
and apply to all children who are deprived of their liberty, for
Home Office policy prior to October 2001 was
broadly in line with most of these international standards and
was reflected in the July 1998 White Paper Firmer, Faster, Fairer.
"Detention should be planned to be effected as close to removal
as possible so as to ensure that families are not normally detained
for more than a few days".
The policy was then changed to allow "detention of those
families whose circumstances justify this (ie the risk of absconding,
identities and claims need to be clarified or pre-removal)".
change in policy appears to have resulted from Ministerial authorisation
and was not based on any research evidence regarding families
absconding or other risk evidence. 
The UN JDL Rules provide that deprivation of
liberty should only occur in exceptional cases. They
require that the length of the sanction should be determined by
the judicial authority, without precluding the possibility of
early release and that a State should set an age limit below which
it should not be permitted to deprive a child of his or her liberty.
Administrative detention of children for immigration
purposes, which is not time-limited, sets no minimum age and is
not used as a measure of last resort is therefore in clear breach
of the UN JDL rules. 
3.3.2 Domestic Legislation
Families with children can be placed in administrative
detention under the powers contained in Para 16 Schedule 2 and
Para 2 Schedule 3 of the Immigration Act 1971. The majority of
the children and families so detained are awaiting removal while
a minority are detained pending examination of whether they should
be granted leave to remain. This latter group are currently only
detained at Yarl's Wood IRC in the "super-fast track".
Most attention has been devoted to the issue
of children detained pending removal and while that is the main
focus of our submissions in this section, we deal first with children
detained pending examination of their families' asylum
3.3.3 Detention of Children pending examination
of the asylum claim
The Commissioners see no justification for detaining
children on arrival in the UK for the purely administrative matter
of processing their families' asylum claims. Anyone who has claimed
asylum has an incentive to comply with the rules in order to present
their case to the authorities. We understand that detention at
this stage is considered primarily on the basis of the families'
and the presumption of an early, and negative, resolution to the
claim. Although the House of Lords and the European Court of Human
Rights have declared that it is lawful to detain asylum seekers
pending examination of their claim under Article 5(1)(f) of ECHR,
we are unaware of any case brought before the courts by or in
relation to the detention of children. Detention at this stage
cannot be construed as a "measure of last resort" and
is therefore in our view incompatible with Article 37 of the CRC
and the UN JDL rules.
3.3.4 Current policy and practice regarding the
removal of failed asylum seeking families from the UK
The Immigration Service has a published policy
dealing with family removals. This
has recently been the subject of an internal review following
concerns raised by, amongst others, the Scottish Children's Commissioner.
The English Commissioner's office was invited
to meet senior Home Office and Immigration Service officials as
part of the review process. At
this meeting, it was explained that the Immigration Service was
conscious that communications throughout the process of removals
could and should be improved. Officials wanted to see a process
which recognised the needs of children and maintained participants'
dignity. We were told that a summary report on the review would
be ready for stakeholders by the end of June 2006. This has not
It was the OCC's impression that the scope of
the review was limited to how enforcement and removal action could
be made "more humane". For example, "pastoral visits"
(where they take place at all prior to enforcement action) are
used merely as an information gathering exercise on the back of
a pre-existing decision to remove rather than as an opportunity
for communication with the family relating to concerns they have
about returning or around the possibilities for voluntary return.
While the Commissioners welcome any review of
current policy and practice, it is clear that a much wider review
which reappraises the approach to families who have reached the
end of the process is needed. We think there is little scope for
the enforcement arm of the Immigration Service to achieve this
on their own. Unless and until such a wholesale reappraisal takes
place, children's experince of the process will be overwhemingly
negative and will continue to damage them.
3.3.5 The experience of removal to detention
"Let me tell you what happened to me this
week on 17 July. Police and Immigration people broke our door
and came in the house at round about 6.00 and 6.30 on Monday morning,
both woman's and men were gathered around the house as we were
criminals as we had done something against the law as we had killed
someone. I first didn't know who these people are. I thought they
got the wrong house and I am not a criminal. These people were
very scary, big and scary." (Extract from a letter received
by the English Children's Commissioner from a 15 year old child
of a failed asylum seeking familyJuly 2006)
"In school, everything we do, every policy
we write, every preparation we make for inspection is guided by
the five outcomes of "Every Child Matters". How
can it be so apparent to everyone in school, including children
in S's class old enough to understand what has happened , that
"every child matters" unless he is the son of an asylum
seeker? If every service dealing with children is guided by these
tenets, how can officers of the immigration service act so patently
outside these guidelines? In short, how can a so-called Western
democracy allow a situation in which children simply disappear
from their familiar surroundings only to find themselves within
hours in a detention centre in another part of the country?"
(Extract from a letter received by the English Commissioner from
the Head teacher of a primary schoolJuly 2006)
The two extracts above illustrate some of human
rights issues raised by the current practices of the Immigration
Service in pursuing the removal of failed asylum seeking families
to detention prior to removal from the United Kingdom. We could
have drawn on many other examples provided to us in writing and
orally by children and their parents with whom we talked to in
our visit to Yarl's Wood Immigration Removal Centre.
Very similar accounts have been presented to the Scottish Commissioner.
It appears to us that typically families are
given no warning of their imminent arrest and removal to detention
prior to removal from the UK. This often means:
Children are made to feel afraid
by the intrusion into their homes.
Children have to witness the distress
(and often handcuffing) of their parents and can become very anxious
about their health and welfare.
Children are sometimes drawn inappropriately
into interpreting immigration officer's questions to family members.
Children are made to feel like criminals
and are sometimes treated as suchfor example by being handcuffed
Children are given minutes to pack
up what may be years of accumulated possessions. We were told
that an average visit is completed within 45 minutes.
Children are prevented from contacting
friends by telephone or in person, to say goodbye.
Children are not provided with information
allowing them to make sense of what is happening to them. 
3.3.6 Alternatives to detention
Mr Gils-Robles, as former Commissioner for Human
Rights for the Council of Europe reporting on the UK in 2004,
his opinion that the numbers of children detained with their families
in the UK suggests that insufficient attention has been paid to
the examination of alternative forms of supervision. He pointed
out that there has been little study of the likelihood of families
with children absconding that supported the Immigration Services
increasing resort to detention. "Prima facie, ... families
with their children attending school, are less likely to abscond
than any other category".
The Children's Commissioners would like to see the Government
commission such a study as part of a wider review into treatment
of families at the end of the asylum process.
Along with many others, we have asked IND to
consider the research evidence available on alternatives to detention
in other jurisdictions. The OCC has itself presented IND with
the findings of its own small scale study into alternatives practiced
in Canada, the USA and Sweden. The
discussion paper prepared recently for the All Party Parliamentary
Groups on Children and Refugees
supported by the "No Place for a Child Coalition" admirably
and persuasively sets out the arguments for such an alternative
It may be that there will always be cases where
forced removals involving detention become necessary. However,
we regard this as an extremely serious step where children are
involved. The evidence is overwhelming that detention is harmful
to children. The detention of any child must therefore be fully
compliant with the internationally recognised standards outlined
above. Government policy on the detention of children must be
designed with these standards underpinning them.
We concur with the view of Mr. Gils-Robles,
in his former role as the European Commissioner for Human Rights,
that where detention is deemed necessary, the Immigration Service
should seek the authorisation of a judge, with a periodic, judicial
review of the continuing justification for detention.
Alternatives to the detention of children are
available and are increasingly well- documented. Not only would
their employment reduce the harm currently being done to children
but there could be benefits for the Government in reducing expenditure,
increasing confidence in the asylum system and in being seen to
abide by their international obligations.
292 The duty to have regard to the UNCRC is qualified
by section 2 (12) of the 2004 Act. Reference to the UNCRC is ...
"subject to any reservations ... for the time being in force". Back
See the UK Governments first report to the Committee on the Rights
of the Child. Back
Some commentators, including the Committee on the Rights of the
Child, have argued that the UK's reservation is incompatible with
the objects and purpose of the CRC. We note that the UK is the
only country of the 192 signatories to the Convention to have
entered a reservation. We are convinced of the argument that the
reservation is not necessary in order for the government to address
its concerns regarding the maintenance of the UK's borders. This
argument has been forcefully put in the legal opinion prepared
for Save the Children (UK) by Blake and Drew, 30.11.01. Back
Section 122 prohibits local authorities from providing such assistance
where such assistance is being provided by the National Asylum
Support Service under section 95 of the 1999 Act. There is an
exception for children who are disabled whose needs go beyond
the "essential living needs" to be provided by NASS.
They are able to receive assistance from the local authority for
additional needs arising from their disability. Back
Most of the relevant matters dealt with under the Children Act
1989 for England and Wales are dealt with in Scotland by Children
(Scotland) Act 1995. Unless specifically stated, references to
the Children Act 1989 include their legislative counterparts in
the relevant Scottish and Northern Irish legislation. Back
Schedule 3, paragraph 1 precludes eligibility for support or assistance
under section 17, 23C,24A or 24B of the Children Act 1989,
Article 18, 35 or 36 of the Children (Northern Ireland)
Order 1995 or sections 22,29 and 30 of the Children (Scotland)
Act 1995. All these powers and duties relate to welfare and
other powers that can be exercised in relation to adults. Back
Quote taken from "River of Life-our journey through the asylum
system"-Brighter Futures Project (a Save the Children
self-advocacy project for young asylum seekers and refugees). Back
Royal College of Pediatrics and Child Health: The Health of
Refugee Children-Guidelines for Pediatricians (November 1999). Back
"Screening interviews" are conducted at ports of entry
or, where the applicant applies "in country" at an Asylum
Screening Unit (ASU). Back
Under powers contained in the Immigration and Asylum Act 1999. Back
The information is collected by the Refugee Council at Oakington
and by Cambridge Social Services Department. It is presented to
a quarterly inter-agency meeting held at the centre. Back
Published by the Home Office as the Detained Fast Track Asylum
Processes Suitability List. February 2006. Back
See appendix 1 this reproduces the 2005 statistics collected at
This might occur for example where a passport issued to an adult
is used by a child to enter the UK. This occurred in the case
of a girl assessed as 14 by Bedford Social Services who was detained
in the super fast track at Yarl's Wood after the change in policy. Back
Asylum Statistics United Kingdom 2005, Home Office Statistical
Bulletin, Heath, Jeffries and Pearce 22.08.06. Table 2.3 indicates
that an unaccompanied asylum seeking child is defined as a person
aged 17 or under, applying for asylum in the UK, who at the time
of application is, or (if there is no proof) is determined to
be under 18 and is applying for asylum in their own right and
has no relative or guardian in the UK (footnote 2 ). The figures
exclude age disputed cases (footnote 3). Back
Ibid, page 11, paragraph 17. Note that withdrawing the
age claim does not necessarily mean that the applicant lied about
his or her age in the first place. The Commissioners have been
informed of cases where children have "given up" on
their age claim because they have been advised to do so in order
to access NASS support. Back
Ibid, page 11, paragraph 17. Operational Guidance to IND
staff on what can be regarded as "credible evidence of age"
is found in Disputed Age Cases (2nd edition, January 2005). Back
Disputed Age Cases (2nd edition, January 2005), section
3 sets out what the Home Office will accept as "credible
evidence" . In the vast majority of cases it is the evidence
of a social work assessment that is accepted. Back
Heath, Jeffries and Pearce, (op. cit.) Table 2.4. Back
Heath, Jeffries and Pearce (op cit), page 11, paragraph 15. A
4% rise on the number of age disputed applications from 2004 despite
a small drop in the number of applicants accepted as unaccompanied
The IS97 (M)-the letter issued to all age-disputed applicants
by the immigration service, was changed when the detained fast
track suitability processes were revised in late 2005. Back
The Legal Services Commission will pay for a medical report for
an age disputed asylum applicant. Back
This came to light particularly at the Oakington Reception Centre
where on-site lawyers routinely request such reports which the
immigration service routinely rejects. The same child is often
released following the production of a social services report. Back
Disputed Age Cases (2nd edition, January 2005). Back
R (on the application of B) v Merton London Borough Council 
EWHC 1689 (Admin)  All ER 280; R (on the application of
T) v London Borough of Enfield  EWHC 2297 (Admin). Back
The UK government must implement the Qualification Directive into
national legislation by 10 October 2006. Back
Asylum Policy Instruction-"Children", Home Office. Back
In fact the Immigration Rules do not define either an "unaccompanied
minor" or an "unaccompanied child". Rule 349 defines
a "child" as a "a person who is under 18 years
of age or who, in the absence of documentary evidence establishing
age, appears to be under that age", but does not give
a definition of "unaccompanied". Back
Section 11 of the Children Act 2004. Back
Grant Instructions to Local Authorities , Financial Year 2005-06
NASS, paragraph 13.3. Back
Heath, Jeffries and Pearce (op cit) page 10, paragraph 12: 2,560
initial decisions made on applications from unaccompanied asylum
seeking children. Of these, 140 (5%) were granted asylum, 20 (1%)
were granted Humanitarian Protection and 1,960 (69%) were granted
Discretionary Leave. 440 (15%) were refused outright with no grant
of leave. Back
Asylum Policy Instruction; Discretionary Leave, section
Available from the Association of Directors of Social Services. Back
The "UASC reform programme" was launched in 2005 by
NASS. A consultation has been promised and is still awaited. Back
Local Authority Circular (2003) 13, Department of Health, 2 June
Children Act 1989, section 22(1)(b). Back
See for example "Ringing the Changes", Refugee Council,
The required period under the Children Act after which
the child is entitled to a leaving care service. Back
NASS provides £650 per week for the care of under 16's and
£350 a week for the care of over 16's. Back
Support is often provided through the "agency" providing
accommodation rather than directly through a social worker. Contact
with a social worker in such arrangements appears to be very variable. Back
Convention on the Rights of the Child, Article 3(1). Back
Ibid, Article 20 (1). Back
Ibid, Article 18 (2). Back
Committee on the Rights of the Child, General Comment No 6 (2005)
Treatment of Unaccompanied and Separated Children outside their
Country of Origin. Back
In 2004, of 3862 referrals only 1082 were allocated a named advisor. Back
Quotation taken from "River of Life-our journey through the
asylum system", Save The Children's Brighter Futures project. Back
Immigration Act 1971, section 3C. Back
Nationality, Immigration and Asylum Act 2002, section 82(2)(d). Back
Section 54 and Schedule 3 of the Nationality, Immigration and
Asylum Act 2002. A former UASC would also reach "the
end of the line" if they failed to apply "in time"
(ie before it expires) for an extension of their Discretionary
UASC Reform Programme 2005-06. Bulletin Issue 3, National Asylum
Support Service. Back
The local authority retain a residual duty to continue to "exercise
a power or perform a duty" if , and to the extent that, its
exercise or performance is necessary for the purpose of avoiding
a breach of (a) a person's European Convention rights or (b) a
person's rights under the Community Treaties. Back
DWP letter, 5 June 2006. Back
1 A reference to Section 4 of the Immigration and Asylum Act
1999 which enables the Secretary of State to provide or arrange
for the provision of accommodation for , amongst others, "failed
asylum seekers". Back
IAA 1999, s 4 (4) (a). Back
Ibid, s(4)(1). Back
Section 9 of the Asylum and Immigration (Treatment of Claimants
etc) Act 2004 ("The 2004 Act") inserted a new class
of persons-"failed asylum seeker with family"- who are
ineligible for support in Schedule 3 of the Nationality, Immigration
and Asylum Act 2002 ("The 2002 Act"). Back
There is however an exception to the general rule under Schedule
3 of the 2002 Act that support cannot be provided: "Paragraph
1 (of Schedule 3) does not prevent the exercise of a power or
the performance of a duty if, and to the extent that, its exercise
or performance is necessary for the purpose of avoiding a breach
of-(a) a person's Convention treaty rights, or (b) a person's
rights under the Community Treaties." Back
The Children Act 2004, section 11(2) (a). Back
Ibid, section 11(2)(b). Back
One example provided to the English Commissioner was the reluctance
of some local authorities to share information on the National
Register of Unaccompanied Children data base because there
was no obligation on some of the participating agencies to have
regard to the same safeguarding duty. This may be a reasonable
view to take given the provision of section 11(2)(b). Back
"A duty to have regard to the need to safeguard and promote
the welfare of children could severely compromise our ability
to maintain an effective asylum system and strong immigration
control"-Baroness Ashton, Lords Grand Committee reading of
the Children Bill (Official Report , 17.06.04 col 996). Back
Somerset, C (2004) Cause for Concern ECPAT. Back
Report on an unannounced short follow up inspection of Yarl's
Wood Immigration Removal Centre, 13-16 February 2006, HMIP. Back
Ibid, page 27. Back
NASS Policy Bulletin 74. Back
NASS Policy Bulletin 63. Back
NASS Policy Bulletin 33. Back
NASS Policy Bulletin 61. Back
See Concluding Observations of the UN Committee on the Rights
of the Child 2002 and Report on the UK of the European Commissioner
on Human Rights, 2005. Back
Report of an announced inspection of Yarl's Wood Immigration
Detention Centre, 28 February-4 March 2005 by HM Inspector
of Prisons. Back
The UN Convention on the Rights of the Child is not part of UK
law, even though the Convention was ratified in 1991 and that
ratification came into force in January 1992. There is, however,
an international expectation that states will implement and abide
by their treaty obligations. There are those who argue that the
UN Convention has now been so widely ratified that it has the
status of customary law. Back
Adopted by the General Assembly Resolution 45/113 of 14 December
1990. The Rules set a general standard to which States should
aspire, but do not have the status of a treaty. Back
Fairer, Faster, Firmer-a modern approach to Immigration and
Asylum, Home Office, HMSO, paragraph 12.5. Back
Letter from Kevin Brewer, Director of Immigration Detention Services
to Bail for Immigration Detainees, 25.09.01. Back
Letter from Simon Barrett, Assistant Director of Detention Services
Policy to Bail for Immigration Detain Back
Rule 2. Back
Whilst a child could technically bring judicial review proceedings
to challenge his or her detention, the Commissioners believe that
this is an insufficient and ineffective means of challenge. Back
The rules governing who is suitable for the detained fast track
(DFT) are set out in the Detained Fast Track Asylum Processes
Suitability List. The most recent version is dated February
Ibid; Annex 2. Back
Saadi -v- United Kingdom (Applcn No 13229/03). Back
Family Removals Policy, Home Office, March 2006. Back
Meeting between OCC staff and Home Office/Immigration Service
officials, 08.05.06. Back
OCC announced visit to Yarl's Wood IRC, 31.10.05. Back
Further evidence of this being children's experience of being
removed is powerfully provided in "Report of an Unannounced
short follow up inspection of Yarl's Wood IRC 13-16 2006",
HMIP, Appendix 3. This summarises the results of structured
interviews conducted with 13 children during the visit. Back
Report by Mr Gil-Robles, Commissioner for Human Rights, Council
of Europe, on his visit to the United Kingdom, 4-12 November 2004
Ibid, para 60. Back
A Review of Alternatives to Detention-case studies from Canada,
Sweden and USA; OCC & Children's Legal Centre, May 2006. Back
"Alternatives to immigration detention of families and
children"-a discussion paper by John Bercow MP, Lord Dubbs
and Evan Harris MP, July 2006. Back