Children's Rights - Human Rights Joint Committee Contents


5  Asylum-seeking, refugee and trafficked children

106.  Article 22 of the UN Convention provides that states should ensure that a child who is seeking refugee status or who has been determined to be a refugee shall receive appropriate protection and humanitarian assistance. In addition, children who are seeking asylum or who have been granted refugee status are entitled to full enjoyment of their rights under the Convention, such as not to be discriminated against, to be treated with humanity and respect, to have their voices heard and for the best interests of the child principle to apply.

107.  States are required to protect children from all forms of sexual exploitation and sexual abuse and to take measures to prevent the inducement or coercion of a child to engage in any unlawful sexual activity, the exploitative use of children in prostitution or other unlawful sexual practices, and the exploitative use of children in pornographic performances and materials.[199] In addition, states must take all appropriate measures to prevent the abduction of, the sale of, or traffic in children for any purpose or in any form.[200]

Reservation to Article 22

108.  In our last Report on the UNCRC, we noted the UK's continued reservation to Article 22 of the Convention which stated as follows:

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 [UK] law to enter and remain in the UK, and to the acquisition and possession of citizenship, as it may deem necessary from time to time.

109.  At the time, we were unconvinced by the Government's defence of its position in relation to the reservation to the UNCRC relating to refugee children, describing it as "far-fetched". We recommended that the Government demonstrate its commitment to the equal treatment of all children by withdrawing the reservation to the CRC relating to immigration and nationality.[201] In our Report on the Treatment of Asylum Seekers, we recommended that the reservation should be withdrawn as it was not needed to protect the public interest and undermined the international reputation of the UK.[202]

110.  Since then, we are pleased to note that the UK Government has withdrawn its reservation to Article 22. Both the UN Committee and witnesses to our inquiry[203] also welcomed the UK's removal of its reservation to Article 22. As Bail for Immigration Detainees (BID) and the Children's Society put it, in their joint submission:

This move, long overdue, means that all children in the UK are entitled equally to the protections afforded by the Convention regardless of their immigration status.[204]

111.  However, witnesses were "alarmed to learn that according to Phil Woolas [MP, the Minister for Borders and Immigration] 'no additional changes to legislation, guidance or practice are currently envisaged'".[205] According to the Immigration Law Practitioners Association (ILPA) substantial changes are required to ensure full compliance with the UNCRC.[206] The Children's Society suggested that:

The withdrawal of the reservation demands a root and branch review of the way that the asylum system treats children and young people to ensure that the decision-making through out the asylum process fully evaluates and acts upon their best interests.[207]

Caroline Sawyer speculated that withdrawal of the reservation would do nothing to prevent British children with a foreign parent from being deported "voluntarily", where their parent is being deported.[208]

112.  The Children's Commissioners told us that they were collectively discussing with the Government the practical implications of the withdrawal of the reservation. The Children's Commissioner for England made clear that the Commissioners "do not oppose Government's legitimate right to decide who stays in this country and who goes" but:

We believe … that children seeking asylum experience serious breaches of their rights, and the immigration control we believe takes priority over human rights' obligations to these children."[209]

The Children's Commissioner for England said that the Commissioners wanted to know exactly what the withdrawal of the reservation would mean in practice, and asked "what difference will a child tomorrow in Yarl's Wood see as a result of the removal of the reservation?"[210]

113.  We welcome the Government's decision to withdraw its reservation to Article 22 of the Convention. This reservation had excluded children seeking asylum from the full range of rights under the Convention. Whilst the UK Government may legitimately exert control over its borders, removal of the reservation expresses the value given to protecting the rights of asylum-seeking children and acts as a reminder that such people are first and foremost children, who deserve to be treated with humanity whilst they remain in the UK. We are surprised however that the UK does not consider that any changes are required in the light of the removal of the reservation. At the very least, we would expect that training and policy papers would need to be updated in order to ensure that decision makers have access to correct and authoritative information as to the current legal requirements. We recommend that the Government justify its argument that the withdrawal of the reservation to Article 22 of the UNCRC does not require any change to current practice or policy in this area.

Asylum-seeking and refugee children

114.  Whilst welcoming the UK's withdrawal of its reservation, the UN Committee expressed concern that:

  • asylum-seeking children continue to be detained;
  • there is a lack of data on the number of children seeking asylum;
  • there is no independent oversight mechanism, such as a guardianship system, for an assessment of reception conditions for unaccompanied children who have to be returned; and
  • children over 10 years of age may be prosecuted if they do not possess valid documentation upon entry to the UK (Section 2, Asylum and Immigration Act 2004).[211]

115.  It recommended that the UK Government:

  • intensify efforts to ensure that detention of asylum-seeking children and migrant children is always used as a last resort and for the shortest appropriate period of time;
  • ensure that UKBA appoints specially-trained staff to conduct screening interviews of children;
  • consider appointing guardians for unaccompanied children;
  • provide disaggregated statistical data in its next report on the number of children seeking asylum, including those whose age is disputed;
  • give the benefit of the doubt in age-disputed cases of unaccompanied children seeking asylum;
  • ensure adequate safeguards upon return, including an independent assessment of conditions and family environment; and
  • consider amending Section 2 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 to allow for a guaranteed defence for unaccompanied children who enter the UK without valid immigration documents.[212]

DETENTION OF CHILDREN SEEKING ASYLUM

116.  The Government's policy on immigration detention of children is that "children are detained only where necessary and for as short a period as possible … only where this is necessary to effect the removal of their family".[213] However, during our inquiry into the Treatment of Asylum Seekers, we noted that a growing number of children and families were being detained.[214] We found that the current process of detention does not consider the welfare of the child, children can be detained for lengthy periods with no automatic review of the decision, and that where the case is reviewed, assessments of the welfare of the child are not taken into account. We concluded that asylum-seeking children should not be detained and that the detention of children for the purpose of immigration control is incompatible with children's right to liberty and is in breach of the UK's international human rights obligations. We recommended that alternatives should be developed for ensuring compliance with immigration controls where it is considered necessary. Finally, we recommended that, in the absence of an end to the detention of children, minimum safeguards should be put in place to ensure that the human rights of children are protected as far as possible.[215]

117.  During our current inquiry, many witnesses again expressed serious concerns at the continuing detention of asylum-seeking children and families. In their joint submission, BID and the Children's Society called for an end to the immigration detention of children[216] and, along with other witnesses, raised a number of specific concerns including:

  • The Government has not made the case for detaining families. There is no evidence of a systematic risk of their absconding, it is costly[217] and incompatible with their welfare.[218]
  • Children are detained for increasingly lengthy periods, and detention is not used sparingly nor as a measure of last resort, as required by the UNCRC. [219]
  • There is insufficient statistical data and monitoring of children in detention[220] and asylum-seeking or refugee children more generally.[221]
  • Safeguards for children in detention are "confusing, contradictory and do not provide adequate protection for children".[222] The majority of families in detention do not know about safeguards such as welfare assessments and Ministerial authorisations.
  • To avoid detaining children, families are separated and parents are detained, which is damaging to the family and may expose the child to harm.[223]

118.  Witnesses drew attention to the "Millbank Project" in Kent, which ended in Summer 2008, in which families awaiting deportation were housed in a residential centre rather than a detention facility. The pilot project aimed to set up an alternative removal process which encouraged closer case work activity with families in supported accommodation, rather than in detention facilities. It was hoped that families would voluntarily return to their countries of origin. In the event, only one family involved in the pilot project chose to leave through the Assisted Voluntary Returns process. BID and the Children's Society said:

This is a missed opportunity … families told us that it was never made clear to them why they were being sent to Millbank: they were simply given 14 days to enter the pilot or have their support stopped. Some had less than a week to make arrangements to sell their possessions and take their children out of school. Some families did not know where they were going until they arrived at Millbank. The referral criteria for the pilot were so confused that some of those selected could not leave the UK because it had already been judged unsafe for them to return to their country of origin.[224]

119.  The Children's Commissioner for England suggested that the pilot was never properly set up in the first place, which meant that its conclusions needed to be challenged. He said:

We would certainly welcome a model, perhaps along the lines of the Australian system, which consists first of all, of much earlier engagement with families, getting their trust very early in the process before it becomes locked into adversarial conflict… The proper testing of alternatives to detention still needs to be done in this country.[225]

However, as Scotland's Commissioner put it:

If people are really scared to go home, nothing anybody is going to do is going to persuade them to go home.[226]

120.  The Scottish Children's Commissioner told us that a similar pilot on alternatives to detention is being launched in Glasgow, based on an independent group of houses akin to hostels, which will try to encourage voluntary return.[227] The Scottish Commissioner said that "we are hoping that will show that you can keep children out of these institutions and still have a reasonable way of implementing the asylum policy".[228]

121.  When we asked the Minister about the Millbank Pilot, she noted that the Government was very disappointed with its results as they were "hoping that it would provide a body of good practice that could help to promote further voluntary removal of families so that detention of children with families would not be as necessary to fulfil immigration policy".[229] Anne Jackson, Director of the Child Wellbeing Group from the Department, said that lessons from the Millbank project would be fed into the Glasgow project.[230]

122.  We welcome the Government's commitment to finding alternatives to detention of asylum-seeking families. However, the evidence we have heard leads us to believe that realistic alternatives have not yet been properly set up, tested or evaluated. We urge the Government to evaluate and learn the lessons of the Millbank Pilot and apply them to future projects, including the pilot in Glasgow. In particular, we agree with witnesses who suggest that alternatives to detention will only be effective if they are commenced sufficiently early and accompanied by good communication with families so as to encourage them to engage with the authorities.

DISPUTES OVER AGE

123.  In our Report on the Treatment of Asylum Seekers, we expressed concern at the treatment of children whose ages were disputed by the authorities.[231] We were not convinced that the Home Office was ensuring that the "benefit of the doubt" was being given to separated asylum-seeking children or that local authorities received appropriate training and support to enable them to undertake an integrated assessment process. We also noted that age-disputed children were detained as adults in contravention of Government policy and case law[232] and recommended that such practice should cease.[233] We concluded:

[…] that where an asylum seeker's age is disputed even where the benefit of the doubt has been give, he or she should be provided with accommodation by the appropriate social service department in order for an integrated age assessment to be undertaken … The process for dealing with age disputes should be reviewed … with a view to ensuring that no age disputed asylum seeker is detained or removed unless and until an integrated age assessment has been undertaken.[234]

124.  According to witnesses and the UN Committee, the poor treatment of age-disputed children remains of concern.[235] Voice and other witnesses told us that the principle that age-disputed children should be treated as children unless proved otherwise was still not followed.[236] The Refugee Children's Consortium and ILPA argued, as we concluded in our Treatment of Asylum Seekers Report, that x-rays should never be used to determine age[237] and Liberty suggested that specialist independent centres for assessing the age of asylum-seeking children should be created.[238] In its response to our Report, the Government justified the use of x-rays, stating that "the margin of error associated with x-rays appears to be considerably smaller than other techniques".[239] We are disappointed that, more than two years after our Report on the Treatment of Asylum Seekers, age-disputed children continue to be poorly treated and to experience the problems we previously identified. We reiterate our previous recommendations that x-rays and other medical assessment methods should not be relied upon to determine age, given the margin of error. The process for dealing with age disputes should be reviewed with a view to ensuring that no age-disputed asylum seeker is detained or removed unless and until an integrated age assessment has been undertaken.

WELFARE, EDUCATION AND SUPPORT

125.  The Refugee Children's Consortium argued that asylum-seeking and refugee children still face substantial inequality of treatment because they:

… are now the only children who do not have any formal link with the Department for Children, Schools and Families … While the welfare of children rests with a department that has no targets in relation to the treatment of children, and objectives that run counter to children's best interests, it is difficult to see how the standard of treatment set out in Article 3 of the UNCRC (primacy of a child's welfare) will ever be achieved.[240]

The Children's Society suggested that the difficulties that refugee and asylum-seeking children face in gaining access to education were due in part to the absence of a link with the DCSF:

For as long as this group of children remain without any link to the DCSF it is difficult to see how policies and practices in education will not ignore, or discriminate against them.[241]

126.  The Minister told us that the DCSF had a role in relation to unaccompanied children, as they are viewed in the same way as looked-after children and are included within the programmes which flow from the provisions of the Children and Young Persons Bill.[242] However, she did not suggest that asylum-seeking children more generally, such as those who are accompanied or who have refugee status, fall within her area of responsibility. This contrasts with the evidence of the Office of the Children's Rights Director for England which described a two-tier approach to children leaving care which distinguished between indigenous care leavers and asylum-seeking care leavers.[243]

127.  At a local level, Voice suggested that there was inadequate local authority support for and accommodation of asylum-seeking children.[244] Voice also spoke of attempts by local authorities to avoid their responsibilities under the Children Act 1989, which was contrary to Government guidance.[245]

128.  On the other hand, witnesses also referred to positive developments in the area of welfare and support such as the UK Border Agency's (UKBA) Code of Practice for Keeping Children Safe from Harm which came into force on 6 January 2009[246] and the Government's commitment to introducing a duty on UKBA which is equivalent to Section 11 of the Children Act 2004 to safeguard and promote the welfare of children.[247] This has now been introduced in the Borders, Citizenship and Immigration Act 2009, on which we reported earlier this Session.[248] In our Report on the Bill, we welcomed the new duty as a human rights enhancing measure stating:

We welcome the Government's express acceptance that every child matters as much if they are subject to immigration control as if they are British citizens … We will be looking carefully for evidence that this welcome change in policy will now make a practical difference to the many and well-documented human rights problems suffered by children in the UK who are subject to immigration control.[249]

129.  Further information on both of these developments was provided to us by the Department, which told us that:

The Government has … decided that the [UK Border] Agency should be subject to a duty to have regard to the need to safeguard and promote the welfare of children.[250]

And that:

The UKBA are keeping a close eye on progress and being alert to the need for further improvements in practice.[251]

130.  We asked the Minister to explain the changes that she considered to be necessary to ensure that the UKBA complies with its new duty and to ensure that they meet it. Anne Jackson, Director of the Child Wellbeing Group from the Department, explained that the new Code of Practice:

… requires all UKBA staff to … keep children safe from harm by ensuring that immigration procedures are responsive to the needs of children and young people and identifying and being able to identify young people at risk of harm and then knowing who to refer on to if they identify such a young person. This code, as I say, is quite new, so we will be looking to see what impact it has and then to strengthen it further in the light of the new duty.[252]

131.  Despite these positive developments, witnesses were clear that they were not sufficient in themselves and made a number of recommendations as to how practice in this area could continue to be improved, including by:

  • developing a child rights approach to the asylum system;[253]
  • applying the principle of the best interests of the child, especially in cases where there was to be forceful removal of a child or return of a separated child to his or her country of origin;[254]
  • facilitating access to an independent guardian for all separated children;[255]
  • ensuring that asylum-seeking children are given the same rights and protection as other children; [256] and
  • training all staff on the Code and providing more information about how the Code will be policed.[257]

132.  We welcome the steps taken by the Government in adopting a new Code of Practice and statutory duty which have the potential to provide greater protection to the human rights of child asylum seekers. We urge the Government to ensure that all staff are appropriately trained on their new responsibilities, that robust mechanisms are put in place to monitor and ensure compliance with the duties and that accessible information is provided to those seeking asylum on how they can expect to be treated by the UK Border Agency in the light of these responsibilities. We will continue to monitor developments in this area.

Trafficked children

133.  In our Report on Human Trafficking, we considered the position of children who have been trafficked.[258] We concluded that the support available to trafficked children in legal proceedings, in dealings with other authorities, and in their daily lives, is a matter which needed to be reviewed urgently. We were not persuaded that, in general, local authorities had developed the necessary expertise to cater for the very special needs of trafficked children.[259]

134.  The UNCRC welcomed the UK's intention to ratify both the Optional Protocol to the Convention on the Sale of Children, Child Prostitution and Child Pornography, and the Council of Europe Convention on Action against Trafficking in Human Beings. It recommended that the UK:

  • collect data on the extent of sexual exploitation and abuse of children;
  • treat child victims of sexual exploitation, including child prostitution, exclusively as victims in need of recovery and reintegration and not as offenders;
  • ratify the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Abuse;
  • provide the necessary resources for an effective implementation of the Anti-Trafficking Action Plan; and
  • implement the Trafficking Convention by ensuring that child protection standards for trafficked children meet international standards.[260]

135.  Since the Committee's Report, the UK has ratified the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Pornography and Child Prostitution, in February 2009.[261] In our last Report on children's rights, we noted the Government's commitment to ratifying the Convention and looked forward to the Government taking early legislative action so as to be in a position to sign and ratify the Optional Protocol.[262] We are pleased to note that the UK has now ratified the Optional Protocol on the Sale of Children, Child Pornography and Child Prostitution and will be looking, in the future, for evidence of its effects on UK practice for trafficked children.

136.  Whilst witnesses welcomed the UK's ratification of the Council of Europe Convention Against Trafficking,[263] the NSPCC suggested that the Government's approach to implementation had been "a very narrow and legalistic application of the Convention that we do not consider to be in keeping with the victim-centred spirit and purpose of the Convention itself".[264] Witnesses also told us that problems still remained, including:

  • a lack of awareness and identification of trafficked children and a lack of support and care available to them;[265]
  • a focus on immigration control continues to take precedence over concerns about the welfare of trafficked children and a child protection and child rights-based response to their situation; [266]
  • inappropriate criminalisation of trafficked children;[267]
  • no "safe house" facilities for child victims of trafficking in the UK;[268]
  • low numbers of convictions for trafficking offences related to children (such as of perpetrators of trafficking); and
  • difficulties for trafficked children in obtaining immigration status.[269]

137.  According to ECPAT UK:

At any given time a minimum of 600 children, known or suspected of being trafficked, will be in the asylum system or will have been in the asylum system before going missing from local authority care. This represents 10% of the Home Office quoted figure of 6,000 total number of unaccompanied asylum seeking children supported by local authorities.[270]

138.  We intend to follow up our previous inquiry into human trafficking before the end of the current Parliament and will raise some of these issues in that context.



199   Article 34 UNCRC. Back

200   Article 35 UNCRC. Back

201   See note 5 above, para. 87. Back

202   See note 9 above, para. 181. Back

203   Ev 46, 66, 83, 121, 140, 155 Back

204   Ev 34 Back

205   Ev 101, 155; this was confirmed to us in writing by the Home Secretary in a letter dated 11 November 2008: "No additional changes to legislation or significant amendments to guidance and practice are currently envisaged but all relevant UKBA [UK Border Agency] staff will be advised through our internal communications network when the formal process of withdrawing the reservation is completed." Back

206   Ev 101 Back

207   Ev 65 Back

208   Ev 161 Back

209   Q 17 Back

210   Q 17; Yarl's Wood is an immigration removal centre in Bedfordshire. Back

211   UNCRC's Concluding Observations on the UK, op. cit., para. 70. Back

212   UNCRC's Concluding Observations on the UK, op. cit., para. 71. Back

213   Ev 74 Back

214   See note 9 above, para. 238. Back

215   Ibid., paras. 258, 259 and 261. Back

216   Ev 60, 100, 121, 190 Back

217   Ev 34; detaining a child costs £130 per day Back

218   According to press reports of a recent study by paediatricians and psychologists, 73% of children in UK immigration detention centres examined for the study had developed clinically significant emotional and behavioural problems since being detained. Reported in The Guardian, Children made "sick with fear" in UK immigration detention centres, 13 October 2009. Study by Lorek A., Ehntholt, K., Wey, E., Githinji, C., Rossor, E., Wickramasignhe, R., The Mental and Physical Health Difficulties of Children held within a British Immigration Detention Centre: A Pilot Study" Child Abuse and Neglect, the International Journal, September 2009. Back

219   See also Ev 94, 155 Back

220   See also Ev 100 Back

221   Ev 94, 155 Back

222   Ev 36 Back

223   Ev 155 Back

224   Ev 37 Back

225   Q 20 Back

226   Q 22 Back

227   Q 21 Back

228   Q 19 Back

229   Q 90 Back

230   Qq 96 & 97; see also Review of the Alternative to Detention (A2D) Project, Andrew Cranfield for UKBA, May 2009. Back

231   See note 9 above, paras 197-204. Back

232   See note 9 above, para. 203. Back

233   See note 9 above, para. 204. Back

234   See note 9 above, para. 204. Back

235   Ev 60, 83, 101, 155, 188 Back

236   Ev 60, 83, 101, 155, 188 Back

237   Ev 110, 156 Back

238   Ev 122 Back

239   Seventeenth Report of Session 2006-07, Government Response to the Committee's Tenth Report of this Session: The Treatment of Asylum Seekers, HC 790, HL Paper 134, para. 34. Back

240   Ev 154 Back

241  Ev 67; see also Ev 156 on difficulties faced by asylum-seeking and refugee children in accessing education Back

242   Q 87 Back

243   Ev 149 Back

244   Ev 149, 187 Back

245   Ev 187; section 20 Children Act 1989 (duty of local authority to provide accommodation for children in need within its area) Back

246   Ev 34, 60, 155 Back

247   Ev 34, 60 Back

248   Ninth Report of Session 2008-09, Legislative Scrutiny: Borders, Citizenship and Immigration Bill, HL Paper 62, HC 375. Back

249   Ibid., para. 1.15. Back

250   Ev 73 Back

251   Ev 74 Back

252   Q 89 Back

253   Ev 140 Back

254   Ev 156, 185, 190 Back

255   Ev 60, 94, 101, 140, 185, 190 Back

256   Ev 140 Back

257   Ev 155 Back

258   Twenty-Sixth Report of Session 2005-06, Human Trafficking, HL Paper 245, HC 1127. Back

259   Ibid, para. 165. Back

260   UNCRC's Concluding Observations on the UK, op. cit., paras 74-76. Back

261   Ratified on 20 February 2009. Back

262   See note 5, para. 91. Back

263   Ev 83 Back

264   Ev 141 Back

265   Ev 141 Back

266   Ev 141 Back

267   Ev 62, 83, 141 Back

268   Ev 83 Back

269   Ev 67 Back

270   Ev 83 Back


 
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