Joint Committee On Human Rights

Joint Committee On Human Rights Written Evidence

56. Memorandum from the Children's Commissioner for England on behalf of the Children's Commissioners for England, Scotland, Wales and Northern Ireland

EXECUTIVE SUMMARY

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.

UNACCOMPANIED MINORS

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 Qualification Directive.

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 potential.

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.

Explaining rights

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.

CHILDREN IN FAMILIES

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 Centres.

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 safeguarding framework.

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 welfare principles.

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.

1. INTRODUCTION

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 UK.

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. [292]

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[293] 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 immigration control[294] and should be removed. Our submissions to this inquiry focus on these concerns.

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. [295]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[296] ("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").[297]

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. UNACCOMPANIED ASYLUM SEEKING CHILDREN

2.1 Age disputes

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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 Service

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 being violated.

As noted by the Royal College of Paediatrics and Child Health:

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The decision by an immigration officer at the screening interview[300] 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) [301]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[302] 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 children

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, [303]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. [304]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. [305]

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 some concern.

In 2004, there were 2,990 asylum applications from unaccompanied children accepted as such at the point of application. [306]In 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[307] or the Home Office receiving "credible evidence of age".[308] Unfortunately, the data does not tell us how many of the 495 "resolved" cases were due to the Home Office accepting "credible evidence"[309] that the applicant was a minor as originally claimed.

In 2005[310], 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. [311]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. [312]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 reports[313] are treated with sceptisim by Home Office decision makers because of the potential margin of error and are often rejected. [314]Documentary evidence such as birth certificates, sometimes obtained from the home country at great risk, are regarded as unreliable and potentially fraudulent.

The evidence most readily accepted as a matter of policy is a full assessment by a local authority social services department[315]. 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 department

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 engaged.

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[316], 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 at risk

"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[317] provides a comprehensive and widely accepted definition of an unaccompanied minor.

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.

The Asylum Policy Instruction (API), to which Home Office decision makers have regard, gives the following definitions and guidance on the difference between "accompanied" and "unaccompanied"[318] children.

"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 the placement."

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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 implications.

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[320], 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[321] note the following exclusion from the definition of an "unaccompanied minor":

"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 planned arrangements

The vast majority of unaccompanied asylum seeking children are refused asylum but are granted a period of "Discretionary Leave".[322] For most children this is given until the age of 18 under the part of the Discretionary Leave policy relating to unaccompanied children. [323]

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 been evaluated[324] and is likely to act as a model for future care arrangements under the "UASC reform programme".[325]

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 2003[326]. 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. [327]

The Commissioners are concerned that many local authorities continue to provide accommodation to unaccompanied minors under s 17. [328]It is doubtful whether these decisions are based on the young person's assessed needs but rather on the desire to avoid incurring "leaving care" duties.

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 service. [329]It is hard to resist the conclusion that these decisions are financially driven.

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[330] 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"[331] 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[332] 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, [333]along with the requirement to render "appropriate assistance to parents or legal guardians in the performance of their child-rearing responsibilities"[334] 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:

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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 referred. [336]Furthermore, 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

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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. [338]Where the decision is to refuse to grant further leave, a right of appeal is triggered. [339]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. [340]

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".

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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 appears groundless.

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 Leave.

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".[342]

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[343] 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. [344]For technical reasons relating to the definition of an "asylum seeker" for support purposes, [345]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 bail. [346]

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 UK.

3. CHILDREN IN ASYLUM SEEKING FAMILIES

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 involvement.

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. [347]

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 CRC

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 from them.

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. [348]

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 treatment.

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 children?

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 functions. [349]It 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." [350]

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. [351]

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. [352]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. [353]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 at risk.

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 centres

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. [354]The Commissioners' views are that children should not be detained other than as a matter of last resort and then only for the shortest possible time.

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[355] 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, [356]children's education, [357]age disputes[358] and appropriate support for pregnant women and newborn babies. [359]Families 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 international law

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, [360]as well as by the Inspector for Prisons, Anne Owers, in her first report on Yarl's Wood[361].

Article 37(b) of the UN Convention on the Rights of the Child[362] 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), [363]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 whatever reason.

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"[364]. 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)". [365]The 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. [366]

The UN JDL Rules provide that deprivation of liberty should only occur in exceptional cases. [367]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. [368]

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".[369]

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 claims.

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' nationality[370] 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[371], 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. [372]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. [373]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 been forthcoming.

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 family—July 2006)

"Every Child Matters"

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[374]. 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 such—for example by being handcuffed or restained.

— 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.

375

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, [376]expressed 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".[377] 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. [378]The discussion paper prepared recently for the All Party Parliamentary Groups on Children and Refugees[379] supported by the "No Place for a Child Coalition" admirably and persuasively sets out the arguments for such an alternative approach.

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.