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.
SCOPE OF THE INQUIRY
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.
THE HUMAN RIGHTS FRAMEWORK
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.
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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.
STRUCTURE OF THE REPORT
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: https://www.gov.uk/government/publications/immigration-statistics-october-to-december-2012/immigration-statistics-october-to-december-2012#asylum-part-2-appeals-unaccompanied-asylum-seeking-children-age-disputes-and-dependants 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: http://www.parliament.uk/documents/joint-committees/human-rights/Transcript_24_April_2012_%5bUncorrected%5d.pdf Back
5
Letter from the Chair to the Rt Hon Theresa May MP, Secretary
of State for the Home Office, 26 November 2012: http://www.parliament.uk/documents/joint-committees/human-rights/Letter_to_T_May_26_Nov.pdf Back
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