Children's Rights - Human Rights Joint Committee Contents

Memorandum submitted by the Scottish Refugee Council


  Scottish Refugee Council is an independent charity which provides advice and information to asylum seekers and refugees in Scotland. We also campaign for the fair treatment of refugees and asylum seekers and to raise awareness of refugee issues.


  The Joint Committee of Human Rights of the UK Parliament is undertaking a short inquiry into children's rights following the publication of the UN Committee on the Rights of the Child Concluding Observations as well as following up several of the Committee's own recent inquiries, including the inquiry report into the Treatment of Asylum Seekers (2007).


  1.1  Scottish Refugee Council warmly welcomes the Committee's inquiry and continuing scrutiny of the human rights and children's rights implications of UK Government asylum policy.

1.2  As a member of the Refugee Children's Consortium, Scottish Refugee Council shares fully the concerns raised in the Consortium's response. This short submission seeks to provide some additional evidence on the rights of asylum-seeking and refugee children in Scotland.

  1.3  We would also urge the Committee to consider in its inquiry the NGO Alternative Report (Scotland) to the United Nations Committee on the Rights of the Child 2008.[512] This report was informed by consultation with a wide range of NGOs in Scotland. It highlights areas of concern and makes a number of recommendations for the Scottish and UK Governments. Some of the recommendations in the report have been progressed since its publication prior to the UN Committee's deliberations (including the removal of the UK's general reservation to the UN Convention on the Rights of the Child), however most remain relevant.


  2.1  Scottish Refugee Council remains deeply concerned by many aspects of the operation of the UK asylum determination system and its impact on the rights of refugee children in Scotland. We do however recognise and welcome the steps that the current Scottish Government and the previous administration in Scotland have taken to ensure that refugee children are treated first and foremost as children.[513], [514]

2.2  We are pleased that the Scottish Government endeavours to develop policies within their devolved responsibilities to reflect this and support the principles of the United Nations Convention on the Rights of the Child (UNCRC) to refugee children:

    Asylum seekers must be treated fairly and humanely, particularly when children are involved ... The welfare and rights of all children in Scotland are paramount and must be treated as such. This is reflected in Scots law.[515] And;

    [The Scottish Parliament] affirms its support for the principles of the UN Convention on the Rights of the Child (UNCRC) which states that governments should protect children from all forms of physical or mental violence; recognises that, while the Scottish Executive has no direct responsibility for the operation of the immigration and asylum system, it is responsible for the welfare of children, for schools, and for working with the UK Government to report on compliance with the UNCRC;[516]

  2.3  The main practical manifestations of these statements within their devolved competences have been in the area of education, introducing changes to ensure that asylum-seeking and refugee children receive similar access and support to other children in Scotland and progressing their rights under Article 29 of the UNCRC.

    2.3.1  In autumn 2006, the Scottish Executive changed educational regulations for asylum seekers, refugees and migrants. One of these changes was to extend Educational Maintenance Allowance (EMA) for those granted refugee status, Humanitarian Protection and Discretionary Leave. This allowed unaccompanied asylum-seeking children in Scotland, many of whom are initially granted Discretionary Leave, to access EMA like other children in Scotland, something Scottish Refugee Council had called for.[517]

    2.3.2  In 2007 changes were made to education regulations which removed a thee-year residency requirement for those granted humanitarian protection in Scotland to access funding for higher education.[518] In England and Wales, this is not the case. This provision went beyond those set out in the EU Directive on minimum standards for the qualification and status of refugees.[519]

    2.3.3  The Scottish Government further amended regulations in 2008 to give asylum-seeking children who had spent at least three years in Scottish schools the same access as Scottish children to full-time further and higher education.[520]

  2.4 We also welcome the approach the Scottish Government has taken to follow up on the Concluding Observations of the UN Committee by publishing an implementation plan. This plan is currently open for consultation.[521]


  3.1  Scottish Refugee Council also welcomes statements made by the Scottish Government against UK Government policies which have a detrimental impact on asylum-seeking children in Scotland, such as their opposition to forced removals of families and the detention of children at Dungavel House Immigration Removal Centre and Section 9 of the 2004 Asylum and Immigration Act (Treatment of Claimants etc).[522] Several of these mirror the concluding observations of the UN Committee and the Joint Committee's own previous reports.

3.2  In addition concerns raised by the administrations in Scotland around the nature of forced removals, the detention of children and inadequate treatment of unaccompanied asylum-seeking children have led to several developments including the creation of the "lead professionals"; fast resolution of many families' cases in the case resolution programme; and the development of a family returns pilot:

    3.2.1  The aim of the lead professionals is to ensure that the UK Border Agency has relevant information about the health, welfare and education of asylum seekers to inform its decisions about family removals in cases covered by the legacy review, including matters concerned with their timing and handling. No published data is so far available on the effectiveness of the role of the lead professional to ensure that children's rights are being respected by UKBA in the removal process.

    3.2.2  The initial phase of the UK Border Agency's case resolution review dealing with families that arrived in the UK prior to July 2004 concluded in March 2008. Around 1000 families in Glasgow were given leave to remain. Since the start of the second phase in March 2008, a further 200 legacy families have been granted leave. Whilst we welcome the speed with which cases were concluded, allowing children and their families the ability to rebuild their lives in Scotland, the status granted to these families has meant that families have been unable to access the same entitlements to family reunion as those granted refugee status.


  4.1 Scottish Refugee Council has raised concerns about the availability of quality legal representation for unaccompanied asylum-seeking children currently in Scotland. We are particularly concerned in light of the UK Border Agency's proposed plans to disperse unaccompanied asylum-seeking children to specialist local authorities around the UK including to local authorities in Scotland. We believe that a thorough assessment of the availability of quality, specialist legal representation should be carried out prior to any substantially increased number of children in Scotland.


  5.1  It is acknowledged amongst service providers that they are confused about the interface between UK and Scottish legislation and whether duties emanate from Westminster or Holyrood. This is supported by research conducted by the Glasgow Centre for the Child and Society into the needs and experiences of unaccompanied asylum-seeking children in Scotland[523] which found that: "The ambiguity between some Scottish and UK legislation can make it difficult to advance children's rights ..." The report recommended that to improve service providers understanding:

    Clearer guidance is needed with regards to the remits and responsibilities of the Scottish and UK Parliaments. Service providers must be aware of the legislation, policies and procedures that apply to their work with unaccompanied asylum-seeking children in Scotland taking account of children's legislation and devolution.

      5.2 Similarly, an HMIE joint inspection of services for children of asylum seekers in Glasgow in June 2007 found that:

    Some managers and staff in the social work service were unsure whether children of asylum seekers and unaccompanied asylum-seeking children could be referred to the Children's Reporter in the same way as other children. When children were referred to the Children's Reporter, a range of appropriate actions were taken. Children's Reporters were not always clear about the complex relationship between Scottish and United Kingdom legislation for children of asylum seekers.[524]

February 2009

512 Back

513   Immigration and nationality are reserved matters under schedule 5 of the Scotland Act 1998 and reserved and devolved competences are further elaborated in the Concordat between the Home Office and the Scottish Executive. Many services and areas of policy which support and impact on asylum-seeking and refugee children living in Scotland are however not listed in this Concordat. These include the wholly devolved competences of education, interpreting and translation, policing, housing, health care, criminal justice, the provision of legal aid, social work and children's services and child protection. Back

514   See appendix 1 and 2. See Sections 545-559 of The Scottish Government's Report on the Implementation of the UN Convention on the Rights of the Child in Scotland: Back

515   See Appendix 1. Back

516   Scottish Executive amendment to Parliamentary debate on asylum-seeking children 22 September 2005. Back

517   Ibid. Back

518   The Education (Fees and Awards) (Scotland) Regulations 2007 and guidance:  Back

519   Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. For children, the regulation change complies with Article 27 (1) states that 1. Member States shall grant full access to the education system to all minors granted refugee or subsidiary protection status, under the same conditions as nationals. However the regulation change goes beyond the minimum standard for adults as set out in Article 27 (2): Member States shall allow adults granted refugee or subsidiary protection status access to the general education system, further training or retraining, under the same conditions as third country nationals legally resident. Back

520   The Education (Graduate Endowment, Student Fees and Support) (Scotland) Amendment Regulations 2007. Back

521 Back

522   See appendix 1 and the Scottish Government's consultation on the implementation of the UNCRC's concluding observations. Back

523   This is a Good Place to Live and Think About the Future, the needs and experiences of unaccompanied asylum-seeking children in Scotland, March 2006,  Back

524 Back

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