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

2  The best interests of children

18. One of the core principles of the UNCRC is that the best interests of children should be properly considered. Article 3 of the Convention requires that 'in all actions concerning children and young people, whether taken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration'.

19. The concept is developed further in the work of the UN Committee on the Rights of the Child. General Comment No. 5 calls for the systematic consideration of the interests of children in relation to all decisions and actions that affect them.[6] General Comment No 6 stresses the importance of a proper determination of the best interests of a child in order to guide decisions that "fundamentally impact on the unaccompanied or separated child's life".[7] We also note in this respect that the UN Committee is soon to publish General Comment No. 14, which will provide further guidance on the best interests principle.

20. The importance of giving due consideration to the needs of the child is also set out in domestic legislation. As we noted in our introduction, relevant public authorities are under legal obligations to safeguard children and promote their welfare under both Section 11 of the Children Act 2004 and Section 55 of the Borders, Citizenship and Immigration Act 2009.

21. It is clear from these sources that the best interests of a child must be at the forefront of the minds of all those making decisions regarding the welfare of unaccompanied migrant children during the asylum and immigration process. This was made clear by the Supreme Court in the case of ZH Tanzania v Secretary of State for the Home Department.[8] Lord Kerr of Tonaghmore indicated that a child's best interest "is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them [...] the primacy of this consideration needs to be made clear in emphatic terms."[9]

22. The Government stated in its written evidence that it took the responsibility to uphold best interests "very seriously" throughout the asylum and immigration process, starting with proper consideration of any asylum or humanitarian protection claims made. If refused, the next steps were considered in the light of an assessment of the child's best interests, with the child playing a "central role" in the process. According to the Government, best interests are assessed based upon available evidence, balancing the likely conditions the child is likely to face upon return and the child's experiences in the United Kingdom against "other relevant considerations". It noted such decisions were made in line with the UNCRC and domestic obligations, and highlighted that children were given access to support and representation during the process.[10]

23. Despite this, a significant number of organisations questioned whether the best interests of unaccompanied children were in fact being systematically assessed and upheld throughout the asylum and immigration process.[11] Sarah-Jane Savage, Senior Protection Associate at the UN High Commissioner for Refugees (UNHCR), did not consider that best interests were being considered "as well as they could be".[12] The Refugee Children's Consortium was concerned that best interests were considered only as part of a pro forma exercise, rather than in a substantive determination.[13]

24. Many of those who gave evidence considered that problems in assessing best interests arose because immigration concerns too often took priority.[14] The UNHCR said that "the current practice of the UK is only to consider the best interests through an immigration prism, rather than as a process where the decision maker is required to weigh and balance all the relevant factors of a child's case"[15] The Coram Children's Legal Centre noted that, despite clear legislation, guidance and case law, "asylum-seeking and migrant children's rights remain subsidiary to the government's restrictive interpretation that the public interest rests solely in maintaining effective immigration control."[16] Dr Maggie Atkinson, the Children's Commissioner for England, accepted that "the law is there" to enable best interests to be considered, but questioned "whether or not it is actually implemented".[17] Reflecting this concern, Keith Towler, the Children's Commissioner for Wales, wanted to ensure that the focus was on "practical implementation that is followed up by inspection and monitoring."[18]

25. By contrast the Coram Children's Legal Centre wanted to see a root-and-branch review of how best interests are considered, to drive forward fundamental change.[19] To that end, Helen Johnson, Operations Manager of the Children's Section at the Refugee Council, considered it inappropriate that immigration authorities were making determinations in this sphere, and argued for a child's best interests to be determined by independent child professionals.[20] Yesim Devici, Director of the Dost Centre for Young Refugees and Migrants (Dost), agreed that a "holistic needs-assessment process" was needed.[21] Dragan Nastic, Domestic Policy and Research Officer at UNICEF UK, pointed to the multi-disciplinary approach in Finland as a best practice example of how such a system could be constructed effectively.[22]

26. The UNHCR thought that the adjudication of best interests in fact required a formal procedure: a Best Interests Determination (BID).[23] It said that the existing process was insufficiently systematic and that this had negative consequences for decision-making. The UNHCR considered that a BID, with procedural safeguards and formal representation for children, and involving a wide range of decision-makers, would lead to more sustainable solutions; it is producing guidance to flesh out the concept. The UK Children's Commissioners, who supported the establishment of a formal process, urged the Government to pay heed to that guidance when it arrived. They were especially keen for a wider range of expertise to be employed when decisions were made.[24]

27. Mark Harper MP, the Minister for Immigration, did not consider that there were any systemic issues negatively affecting the present process. He noted that those involved—including local authorities, independent advocates and legal representatives—had not identified any major issues.[25] Indeed, he thought that the fact that leave was routinely granted until the cusp of adulthood for those children not granted asylum or humanitarian protection (see paragraph 108) "demonstrates that we put their best interests first, as that is not what we do with adults. I do not quite know what it is that we are not doing that people think we would be doing if, in their view, we were putting the interests of the child first."[26] As to a BID, the Government was wary of the potential administrative impact, stating that "any guidance must complement [the UK's] established processes", and not add "unnecessary delays and costs into the system".[27]

28. On the balance of evidence we received, we are not persuaded that best interests are being considered adequately at present. Immigration concerns are too often being given too much weight, which must change. Forthcoming guidance on best interests from the UN Committee on the Rights of the Child and from the UNHCR in relation to Best Interests Determinations, will provide timely opportunities to properly assess the framework in this regard.

29. The UN Committee on the Rights of the Child has long called for States to ensure that best interests are a primary objective of decision-making. One way to achieve this might be via a formal Best Interests Determination, and it may be that such a process is necessary. However, we should only put children through additional bureaucratic processes where this improves the support they receive, and the quality of decisions that are made. It might be a better course to work to improve the existing system. We accordingly urge the Government to evaluate the case for a BID in the United Kingdom, in consultation with the devolved administrations. We would support any system that puts the best interests of children at its heart and which draws upon all appropriate expertise to do so.

30. In the meantime, the Government must ensure that it receives expert advice on how to ensure that those who interact with, and make decisions about, unaccompanied migrant children properly take their best interests into consideration. This advice should be provided independently.

31. We recommend that the Government's guidance to those safeguarding and making decisions about the future of unaccompanied migrant children should reassert the primary need to uphold the welfare and wellbeing of those children throughout their time in the United Kingdom, and to consider properly their best interests during the asylum and immigration process. Guidance should also call for consultation and cooperation with external experts who are able to provide assistance.

32. We recommend that the Government establish an independent advisory group, composed of experts from voluntary organisations, academia and practice, to provide guidance to Ministers about how to consider the best interests of unaccompanied migrant children most effectively. Its framework for scrutiny should be based on the UNCRC and applicable domestic duties, to ensure that the group's work is child-focused.

33. Finally, we recommend that the Government should evaluate the case for the establishment of a formal Best Interests Determination process. This evaluation should analyse the potential benefits of a new and formal process against the alternative of seeking to make improvements to the existing decision-making model. We would be content with either model, provided that the result is a system that brings the best interests of unaccompanied migrant children to the fore.

6   UN Committee on the Rights of the Child, General Comment No. 5, General measures of implementation of the Convention on the Rights of the Child, 2003 Back

7   UN Committee on the Rights of the Child, General Comment No. 6, Treatment of unaccompanied and separated children outside their country of origin, 2005. Back

8   [2011] UKSC 4 Back

9   Ibid, paragraph 46 Back

10   HM Government Back

11   Refugee Children's Consortium, Children's Society, Refugee Council, Barnardo's, Charlotte Nuboer-Cope, Royal Holloway and Tavistock Centre (Sue Clayton, Anna Gupta, Jessica Walsh and Gillian Hughes), Coram Children's Legal Centre, Centre on Migration Policy and Society at Oxford University (COMPAS) Back

12   Q9 Back

13   Refugee Children's Consortium. See also Migrant Legal Project, Immigration Law Practitioners Association (ILPA) Back

14   ILPA, Refugee Children's Consortium, Children's Society, Barnardo's, COMPAS, Coram Children's Legal Centre, ECPAT, UNICEF, NSPCC, Q52 (Dost) Back

15   UNHCR Back

16   Coram Children's Legal Centre. See also NSPCC Back

17   Q29 Back

18   Q29 Back

19   Coram Children's Legal Centre Back

20   Q9. See also Dr Christine Mounge, Q14 (UNHCR) Back

21   Q55 Back

22   Q22 Back

23   UNHCR. See also UNICEF. Back

24   UKCC Back

25   Q88 Back

26   Q90 Back

27   HMG supplementary submission Back

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© Parliamentary copyright 2013
Prepared 12 June 2013