Human Rights of unaccompanied migrant children and young people in the UK - Human Rights Joint Committee Contents

1  Introduction

1. This Report examines the provision made in the United Kingdom for unaccompanied migrant children: those who arrive in the United Kingdom who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so.


2. The inquiry focused in particular on unaccompanied children who enter the asylum system in the United Kingdom. In 2012, around 1,200 unaccompanied migrant children sought asylum in the United Kingdom—about 5% of the nearly 22,000 applications lodged in that year.[1] Most of those who arrive unaccompanied will be taken into the care of local authorities as looked after children. As of 31 March 2012, there were 2,150 such children in local authority care in England—3% of the total number of looked after children. Of these, 550 were under the age of 16.[2]

3. Our report distinguishes unaccompanied asylum-seeking children from those children who are separated from their parents or primary care-giver, but who may nevertheless be accompanied by extended family members or other adults, and those who are within the asylum and immigration process as part of a family group. However, where possible we intend our recommendations to apply more widely, to ensure that the best interests of all children are properly considered.

4. It should be noted that while immigration policy is a reserved matter, responsibility for the care and support of unaccompanied children rests with the devolved administrations. This Report directs itself to matters about which it can make recommendations to the Government, recognising the remit of the devolved assemblies to hold their respective administrations to account in; the recommendations are framed accordingly. Nevertheless, we draw upon relevant evidence and examples from the whole of the United Kingdom.


5. Unaccompanied migrant children are entitled to protection under a broad range of international instruments including the UN Convention on the Rights of the Child ("UNCRC"), the European Convention on Human Rights and the 1951 UN Convention relating to the Status of Refugees and its 1967 Protocol.

6. The UNCRC is the most universally accepted of these instruments and the most comprehensive in its promotion of children's rights, informing other human rights standards through a framework of state responsibilities applicable to all children within signatory states' jurisdictions.

7. Although not directly incorporated into domestic law, the principles of the UNCRC guide domestic law and practice, and are often referred to by the courts when interpreting obligations imposed by human rights and other legislation. Since November 2008, when the United Kingdom removed a reservation to allow it not to apply the Convention to decisions concerning children and young people subject to immigration control, the Government has accepted that all children, irrespective of their immigration status, must enjoy all the rights and protections of the UNCRC without discrimination, as specified under Article 2 of the Convention.

8. The Government has also made clear its commitment to improving consideration of the UNCRC in policy and decision-making. Since December 2010, the Government has been committed to ensuring that all new laws and Government policies are compatible with the Articles of the UNCRC.[3] In an evidence session with this Committee in April 2012, the then Minister of State for Children and Families told the Committee that efforts were being made to embed that commitment across Whitehall.[4]

9. This Report makes reference throughout to those Articles of the Convention that most directly pertain to the matters we address. Some of the most relevant are set out in Box 1.
Box 1: UNCRC Articles

Article 1 (Definition of the child): A 'child' as a person below the age of 18, unless the laws of a particular country set the legal age for adulthood to be younger. The Committee on the Rights of the Child, the monitoring body for the Convention, has encouraged States to review the age of majority if it is set below 18 and to increase the level of protection for all children under 18.

Article 2 (Non-discrimination): The Convention applies to all children without discrimination. No child should be treated unfairly on any basis.

Article 3 (Best interests of the child): The best interests of children must be a primary concern in making decisions that may affect them. All relevant adults should do what is best for children. When decisions are made, the impact on the child must be considered. This particularly applies to budgetary authorities, policymakers and legislators.

Article 4 (Protection of rights): Governments have a responsibility to take all available measures to make sure children's rights are respected, protected and fulfilled. This includes assessing domestic legislation and practice to ensure that the minimum standards set by the Convention are being met. Article 41 of the Convention points out the when a country already has higher legal standards than those seen in the Convention, the higher standards always prevail.

Article 12 (Respect for the views of the child): A child capable of forming his or her own views will be given the right to express those views freely in all matters affecting the child, with those views being given due weight in accordance with their age and maturity. In particular, a child will be provided with the opportunity to be heard in any judicial or administrative proceedings affecting them, either directly, or through representatives.

Article 19 (Protection from all forms of violence): Children have the right to be protected from being huert or mistreated, physically or mentally.

Article 20 (Children deprived of family environment): Children who cannot be looked after by their own family have a right to special care and must be looked after properly, by people who respect their ethnic group, religion, culture and language.

Article 27 (Standards of living): Children have the right to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.

Article 28 (Right to education): Children have the right to free primary education. Secondary education should be available to every child, and higher education should be accessible on the basis of capacity by every appropriate means.

Article 29 (Goals of education): Children's education should develop each child's personality, talents and abilities to the fullest. It should encourage children to respect others, human rights and their own and other cultures. It should also help them learn to live peacefully, protect the environment and respect other people. It should also develop respect for the child's parents and for their cultural identity and values.

Article 39 (Rehabilitation of child victims): Children who have been neglected, abused or exploited should receive special help to recover and reintegrate into society. Particular attention should be paid to restoring the health, self-respect and dignity of the child.

10. To assist in the interpretation of the rights under the Convention, the UN Committee on the Rights of the Child, a body of independent experts which monitors implementation of the UNCRC, issues documents known as General Comments. In the context of unaccompanied and separated children, assistance is provided in particular by General Comments No. 6. This further outlines the principles applicable when UNCRC rights are engaged. In short, it sets out the importance of children being properly represented, cared for and supported throughout the immigration process, with their interests considered at the heart of all decision-making.

11. In addition to the international framework for addressing the needs of unaccompanied migrant children, there are various duties imposed by domestic legislation through the Children Acts 1989 and 2004, the Children (Northern Ireland) Order 1995. the Children (Scotland) Act 1995, the Rights of Children and Young Persons (Wales) Measure 2011, the Children (Leaving Care) Act 2000, and Section 55 of the Borders, Citizenship and Immigration Act 2009. The last of these provisions places a duty on the Secretary of State and the immigration authorities to discharge all immigration functions while having regard to the need to safeguard and promote the welfare of children in the United Kingdom, mirroring the safeguarding duties on other agencies and ensuring that all relevant public bodies are covered by such a duty.

12. We have held these human rights principles at the forefront of our deliberations and we examine the provisions made for unaccompanied migrant children in the light of them. In doing so, we seek to provide recommendations to ensure that these rights are effectively implemented and upheld, particularly where there may be tension between safeguarding and other imperatives, such as in discharging immigration functions.

13. We are grateful to those who submitted oral and written evidence to the inquiry. We received oral evidence in November and December 2012 from non-governmental organisations, the United Kingdom Children's Commissioners, immigration law practitioners and the chair of the Project Advisory Group for the Scottish Guardianship Service. We also heard evidence in January 2013 from local authority representatives, voluntary sector organisations and an academic researcher working in the field. We wish to express our gratitude in particular for the work of Professor Heaven Crawley of Swansea University and Professor Ravi KS Kohli of the University of Bedfordshire, the Specialist Advisers to the inquiry.

14. We also received evidence in February 2013 from Mark Harper MP, the Minister of State for Immigration at the Home Office. We thank the Minister for his contribution, though we note that we were not given permission to hear oral evidence from immigration authority officials.[5] The Committee's deliberations would have benefited from this evidence, and we regret that assistance in obtaining it was not forthcoming.


15. The Report first outlines the most effective means by which to focus on the best interests of children, the central theme of the report and the touchstone for our recommendations. Having established this focus, we then discuss suitable mechanisms with which to uphold children's rights and best interests in policymaking and practice.

16. The Report then considers how well asylum and immigration processes protect those unaccompanied migrant children who are subject to them. This includes how information is gathered to evaluate claims by unaccompanied migrant children, as well as how decisions are made about their future, including when children are returned to their country of origin or to third countries. It also examines mechanisms established to protect those unaccompanied children who have been trafficked, and to assess the age of unaccompanied young people where it is disputed.

17. Finally, the Report examines the support structures in place for unaccompanied migrant children during these often complex processes. It starts by considering the case for a system of guardianship. It then examines how local authorities discharge their support responsibilities to unaccompanied migrant children, including in relation to educational needs. It concludes by assessing the specialist legal support available to unaccompanied migrant children.

1   Home Office, Immigration Statistics: October-December 2012, February 2013: Back

2   Supplementary submission from HM Government Back

3   HC Deb 6 Dec 2010, Col 7WS Back

4   Oral evidence to the Joint Committee on Human Rights on the role and independence of the Office of the Children's Commissioner for England, April 2012: Back

5   Letter from the Chair to the Rt Hon Theresa May MP, Secretary of State for the Home Office, 26 November 2012: Back

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© Parliamentary copyright 2013
Prepared 12 June 2013