Joint Committee On Human Rights Written Evidence

74.  Memorandum from Save the Children

  Save the Children fights for vulnerable children in the UK and around the world who suffer from poverty, disease, injustice and violence. We work with them to find lifelong answers to the problems they face.


  Save the Children welcomes the Joint Committee on Human Rights' inquiry and its scope. This submission is based on our direct work with both separated asylum seeking children and young people and children and young people in families of asylum seekers in the UK.

  Save the Children argues that detention of asylum seeking children in families is overused, unnecessary and violates a number of international and domestic commitments to protect the rights and welfare of all children in the UK. A report[517] addressing this issue is being submitted under separate cover by the No Place for a Child coalition, of which Save the Children is a founding member.

Key recommendations

    —  The UK government should withdraw its reservation to article 22 of the UN Convention on the Rights of the Child (UNCRC), which goes against the object and purpose of the Convention.

    —  The government should address the particular situation of children in the reform of the immigration and asylum system to bring it into line with the principles and provisions of the UNCRC as detailed specifically throughout this document.

    —  We urge the JCHR to investigate the compliance of the draft Unaccompanied Asylum Seeking Children (UASC) Reform Programme with the Human Rights Act, the UNCRC and other international human rights instruments.


Reservation relating to immigration and citizenship to the Convention on the Rights of the Child

  Despite calls to do so by the UN Committee on the Rights of the Child in 1995 and 2002 and the JCHR, there has been no progress on removing the general reservation to the UNCRC relating to immigration and citizenship.

  On a number of occasions government ministers have confirmed they have no plans to remove the reservation. [518]

  The UK government should remove the general reservation to the UNCRC on immigration and citizenship, which goes against the object and purpose of the UNCRC.

Non-child centred asylum system

  In October 2002, the Committee on the Rights of the Child recommended that the UK government "Address the particular situation of children in the ongoing reform of the immigration and asylum system to bring it into line with the principles and provisions of the Convention." [519]

  However, despite the government's commitment to honor the spirit of the UNCRC in relation to the standards of care and treatment available to asylum-seeking children[520], reforms to the asylum system do not consider the impact on children and continue to move it away from the principles and provisions of the UNCRC.

  Save the Children supports the Council of Europe's Human Rights Commissioner's call for a review of asylum laws to make them compliant with the UNCRC. [521]

Punishing children who arrive undocumented

  An area of great concern for us is the effect that section 2 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004[522] could have on children. Guidance on section 2 provides little detail on the treatment of children and procedures mainly rely on Police and Criminal Evidence Act codes of practice, which were never developed to address the specific needs of children seeking asylum.

  Concerns with section 2 have been expressed by the Council of Europe's Human Rights Commissioner[523] and the European Commission against Racism and Intolerance (ECRI). [524]

  If fully implemented, section 2 could result in a number of adverse outcomes for children: parents could be imprisoned and separated from their children, parents and children could be placed in detention together, or non-documented separated children could receive a custodial sentence. [525]

  Section 2 should not be applied to separated children or families seeking asylum.

Differential treatment of children from "White List" countries

  UNHCR, Save the Children and the other members of the Separated Children in Europe Programme are concerned about the use of "white lists" of countries, where it is assumed that children (and adults) coming from these countries will have an asylum claim that is "clearly unfounded". Due to this assumption, children from these countries are given a less substantive interview and less consideration is given to the child's particular circumstances. Save the Children is concerned that this system could lead to some children not having a valid asylum claim recognised, especially as there is a lack of awareness of, and training in, child specific forms of persecution.

  Concern about the use of "White List" counties has also been raised by the European Commission against Racism and Intolerance (ECRI) [526]and by the Independent Race Monitor. [527]

  Children seeking asylum should not be treated under "White List" procedures.

Local authority care for UASC following Hillingdon[528]

  A 2005 Save the Children study found that some local authorities were not able to allocate all children and young people with a social worker and that the quality of accommodation and support, provided by some private semi-independent accommodation service deliverers, was not always adequate. [529]

  Many local authorities reported concerns about a lack of resources, the quality of leaving care provision that they could provide, insufficient numbers of personal advisers, and "extreme difficulties in providing support to 18-year-olds who have outstanding immigration issues".[530]

  Local authorities also reported many barriers to fully implementing Local Authority Circular (2003) 13 and the Hillingdon judgement. These included: Insufficient DfES leaving care grants; Home Office grant levels being too low and based on the age of the children rather than their needs; a child's immigration status taking precedence over entitlements under children's legislation in "end of line" cases; and staffing issues—inadequate staff numbers, lack of training for staff members, and misconceptions among staff about asylum-seeking children.

  Case studies 4, 5 and 6 (in Annex 1) clearly demonstrate how levels of support have a detrimental affect on the lives of vulnerable children.

  Adequate levels of funding should be available to local authorities for the care of UASC and the quality of service provision should be monitored.

Access to good quality legal advice

  Both the New Asylum Model ("NAM") and the UASC Reform Programme will result in children seeking asylum being dispersed to areas where there is an inadequate provision of legal advice.

  Save the Children is already concerned that the current low levels of specialist legal advice, coupled with a total lack of independent advocacy for separated children, results in poor quality decision-making in relation to children's asylum claims. These reforms will exacerbate this problem unless the government ensures that at the same time there is adequate funding for legal advice for asylum seeking children.

  Availability of good quality legal advice should be ensured in all government reform initiatives.

Age disputes and age assessment

  In 2005, age disputed cases continued to be on the increase despite younger and younger children claiming asylum. The onus is placed on the age disputed child to prove that they are under-18.

  Age disputed children are treated as adults (in violation of article 22 of the UNCRC), which means that they do not receive adequate support and can be placed in detention with adults (in breach article 37 of the UNCRC), therefore putting children at risk.

  According to the Refugee Council, in 2005, 60% of age disputed cases at Oakington Immigration Removal Centre were found to be children following age assessments by social services. In some months of 2005, 91% of age-disputed cases were eventually found to be children.

  Immigration officers should be provided with improved training and guidance on age assessment and the stated government policy of giving children the benefit of the doubt should be implemented. [531]

  An independent age assessment dispute panel should be established, comprised of social workers, experienced paediatricians and other relevant professionals.

  Recent thinking in the Immigration and Nationality Directorate (IND) suggests a move towards the introduction of a blanket age assessment for all UASC. Such a practice would mean de facto disputing the age of all UASC. As well as being an expensive practice, it would also increase the mistrust that children have in the asylum system.

  Cases 1, 2 and 3 (in Annex 1) give the child's perspective of age-assessment, illustrating the trauma and distress that age disputing can have on children and young people.

Forced returns of separated children

  Save the Children is very concerned that IND is looking at how it can remove children who have not been given discretionary leave. It is planning to introduce a pilot scheme of forced returns for separated children to countries like Vietnam, Albania, Angola and the Democratic Republic of Congo.

  We are extremely concerned about the assumptions the returns programme is based on; the envisaged systems for its implementation; and the capacity of the target countries to provide the care and protection these children will need:

    —  The best interest of the child principle (article 3 of the UNCRC) will be ignored in decisions to return—the draft policy framework explicitly states: "There are likely to be occasions when IND takes a decision to remove a child/young person which is not in accordance with the best interests of the child but is necessary for immigration control".

    —  There is no solid basis for agencies with a duty to safeguard and promote the welfare of children under section 11 (1) of the Children's Act (2004) to make the decision to return. The final decision on the return of separated children sits with the Home Office, which is exempt from section 11.

    —  In the absence of a guardian or independent advocate (see below) the child's views and best interests will not be adequately considered in the decision-making process.

    —  The proposed inter-agency planning meetings (IAPMs), whose recommendations will form the basis of the decision to return, do not allow for the in-country situation to which a child will be returned to be adequately known and scrutinised.

    —  The quality of safeguarding and care arrangements in the locality to which the child will be returned will also not be considered at the proposed IAPMs. This could mean that a child is returned to a country without a functioning child welfare system or arrive without adequate arrangements being in place.

  A returns programme should only be considered if our recommendations for a child-centred asylum system are implemented and:

    —  The best interests of the child is at the heart of the programme.

    —  A system of guardianship or independent advocates is in place to ensure the child's voice is taken into account in the decision-making process.

    —  An anti-trafficking action plan is in place to minimise the risk of re-trafficking for returned children. [532]

    —  Priority is given to the use of non-institutional forms of care in the countries of return.

  In the long term the UK government should start starting to tackle the root causes of the migration of separated children and encourage and financially support child welfare reforms in those countries where it wants to return children.

Access to education

  In 2002, the Committee on the Rights of the Child recommended that the UK government ensure that asylum-seeking children have access to education, [533]yet through our work with displaced children we are aware that asylum seeking children are still not have their right to education realised under articles 28 and 29 of the UNCRC.

  Specifically, asylum seeking young people who want to go on to Higher Education are categorised as Foreign Students for the purpose of fees and asylum seeking children in England and Wales are not entitled to Educational Maintenance Allowances.

  Case studies 7-10 (in annex 1) highlight the issues of access to education experienced by young people in our Brighter Futures project.

  Training should be available to staff in education institutions so they can address the specific needs of asylum seeking children; career and educational advice should be improved; and more financial support should be available to children and young people wishing to stay on in further and higher education.

  Save the Children in Scotland has anecdotal evidence that citizen families are prioritized over asylum seeking families in the allocation of free places at council nurseries for three and four year-olds despite Scottish Executive's policy stating that: "Free pre-school education is provided regardless of a child's status, citizenship or ethnic background provided the child is residing in Scotland".[534]

  Young asylum seeking children in Scotland should have the same opportunities for play and informal learning as citizen children as is stated in Scottish Executive policy.


Poor financial support and uprooting families for administrative purposes

  Save the Children UK remains concerned that asylum-seeking families continue to receive much less financial support than other destitute citizen families. The average adult rate of benefit for asylum seekers remains at only 70% of that given to non-asylum-seeking adult claimants.

  Additionally, regulations which came into force in June 2004 scrapped Single Additional Payments, which allowed asylum seekers to apply for a one off payment of £50 every six months for essential "living needs".[535] Asylum seeking families have been forced to rely on benefits since the right to work[536] was removed in July 2003. In October 2002, the Committee on the Rights of the Child recommended that the UK government ensure that there is "no discrimination in benefit entitlements for asylum-seeking families which could affect children." [537]

  Save the Children also has anecdotal evidence of local authorities discriminating against asylum-seeking children in terms of the financial support they receive as demonstrated in case study 4 (in Annex 1).

  The government should not discriminate against asylum-seeking families by providing them with lower benefits, whilst at the same time denying them the right to work.

  We have anecdotal evidence in England, Wales and Scotland that families are being moved into accommodation in response to the new private provider contractors. They are being uprooted from schools and childcare services which has a negative impact on their care, support and educational needs. We also have anecdotal evidence of poor quality accommodation provided by these private contractors.

  Decisions to move asylum-seeking families should be based on the best interests of the child rather than cost and it should be ensured that accommodation provided by private contractors are of an adequate standard.

Destitution policies affecting children and young people

  In recent years the UK government has passed legislation that removes entitlement to financial support and accommodation to particular groups of people, at the end of the asylum process, to "encourage" them to leave the country.

  Schedule 3 to the Nationality, Immigration and Asylum Act 2002 has received little public and media attention, but has the potential to have a devastating effect on one of the most vulnerable groups—young people who have turned 18.

  It puts a number of separated children who turn 18 and whose asylum application has been turned down in the category of people unlawfully in the country, denying them leaving care support and most basic types of support available to asylum seekers. Although the Home Office is aware of the devastating effect of Schedule 3 it hasn't agreed to alternative options.

  We are expecting the Home Office to allow this group to access support similar to the so-called "hard case" support under Section 4(1) of the Immigration and Asylum Act 2002. However, this would be inadequate support for care leavers, who have been formerly looked after under section 20 of the Children Act (1989), particularly given the length of time they may have to spend in the UK due to factors which are out of their control.

  The Government should not use destitution to coerce vulnerable young people to leave the country.

UASC Reform Programme

  Save the Children is very concerned by comments in the preliminary UASC Reform Consultation that it does not make sense to spend public money on discharging duties under child welfare legislation to people who "should not be in the UK".

  We urge the JCHR to investigate the compliance of the draft UASC Reform Programme with the Human Rights Act, the UNCRC and other international human rights instruments.

Munira Hassam

Public Affairs Officer

Save the Children

517   "Alternatives to immigration detention of families and children." A discussion paper by John Bercow MP, Lord Dubs and Evan Harris MP for the All Party Parliamentary Groups on Children and Refugees. Supported by the No Place for a Child Coalition. July 2006. Back

518   eg in a debate on the UNCRC in October 2005, the Minister, Baroness Crawley , said: "... in regard to the reservation on asylum seeking children we believe that we honour the spirit of the Convention in relation to the standards of care and treatment available to children in the UK. Including asylum-seeking children. But we have no plans, as yet, to review our decision to maintain our reservation in respect of those immigration matters." Back

519   UN Committee on the Rights of the Child (2002) Concluding Observations on the United Kingdom of great Britain and Northern Ireland, Paragraph 47. Back

520   House of Lords Hansard 19 October 2005. Column 747. Back

521   "The Rights of the Child-present challenges" Presentation by Thomas Hammarberg, the Council of Europe's Human Rights Commissioner. Third Intergovernmental conference on making Europe and Asia fit for children. 19 June 2006. Back

522   This Act introduced an offence of entering the UK without a passport, carrying a maximum two year custodial sentence. Back

523   Council of Europe (2005) Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights, on his visit to the United Kingdom 4-12 November 2004 for the attention of the Committee of Ministers and the Parliamentary Assembly. Back

524   European Commission against Racism and Intolerance (2005) Third Report on the United Kingdom, Council of Europe. Back

525   For more details on the overuse of detention and its negative effects on children, please see "Alternatives to immigration detention of families and children." A discussion paper by John Bercow MP, Lord Dubs and Evan Harris MP for the All Party Parliamentary Groups on Children and Refugees. Supported by the No Place for a Child Coalition. July 2006. Back

526   European Commission against Racism and Intolerance (2005) Third report on the United Kingdom. Back

527   Annual Report 2004-05, Independent Race Monitor Mary Coussey, 5 July 2005. Back

528   The Hillingdon Judgement ruled that UASC are entitled to the same leaving care support as citizen children. Back

529   Save the Children UK (2005) Local Authority Support to Unaccompanied Asylum-Seeking Young People. Changes since the Hillingdon Judgement. Back

530   ibid, p 6. Back

531   Immigration and Nationality Directorate (30 August 2005) Disputed age cases (third edition). Back

532   It is very disconcerting that the profile of children considered for the returns to Vietnam programme is similar to the profile of many victims of trafficking: between 12 and 15 years old and female. Back

533   UN Committee on the Rights of the Child (2002) Concluding Observations on the United Kingdom of Great Britain and Northern Ireland, Paragraph 48(b). Back

534   Robert Brown Deputy Minister for Education & Young People S2W-25281 4.05.06. Back

535   Regulation 4 of the Asylum Support (Amendment) (N 2) Regulations 2004. Back

536   For those who had in been in the country for more than six months. Back

537   UN Committee on the Rights of the Child (2002) Concluding Observations on the United Kingdom of Great Britain and Northern Ireland, Paragraph 48(b). Back

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