Memorandum submitted by the Scottish Refugee
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.
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.,
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.
[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;
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.
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.
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.
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.
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.
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).
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
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
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
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
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.
512 http://www.sacr.org.uk/images/SACR%20NGO%20Summary%2008.pdf Back
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
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: http://www.scotland.gov.uk/Resource/Doc/184924/0052026.pdf Back
See Appendix 1. Back
Scottish Executive amendment to Parliamentary debate on asylum-seeking
children 22 September 2005. Back
The Education (Fees and Awards) (Scotland) Regulations 2007 and
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
The Education (Graduate Endowment, Student Fees and Support) (Scotland)
Amendment Regulations 2007. Back
See appendix 1 and the Scottish Government's consultation on the
implementation of the UNCRC's concluding observations. Back
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, http://www.scottishrefugeecouncil.org.uk/pub/UASC_report