Human Rights of unaccompanied migrant children and young people in the UK

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

4 Protecting unaccompanied migrant children

66. The asylum and immigration process is a crucial first point of contact for unaccompanied migrant children. It is therefore essential that the system ensures that their best interests are properly taken into account throughout.

INFORMATION-GATHERING: SCREENING AND BEYOND

67. When an unaccompanied migrant child comes into contact with authorities in the United Kingdom, the first step is to process the child in order to enter them formally into the asylum and immigration system. This process is called screening. Travel documents are checked, details logged and a short interview is conducted about the application being made. It should be noted that not all unaccompanied migrant children come into contact with the authorities and their presence and situation in the UK may be unknown.

68. Where it is accepted that an applicant is under 18 years of age and therefore a child, he or she will be referred to the relevant local authority for accommodation and support while an application for asylum or other leave is being considered. If the age of an applicant is disputed, he or she will be referred to a local authority social services department for an age assessment to be undertaken (see paragraph 79). If it is considered that the applicant is significantly over 18 years of age, he or she is not directed to a local authority but is instead treated as an adult for the purposes of determining the claim for asylum and providing support. Those adjudged to be adults are liable for a process of fast-track detention, where immigration officials decide that an application can be dealt with quickly and the individual is suitable for detention in the interim.

69. The Minister insisted that the process was clear. He said that, after being screened, children were then given a delay of four days to recover from their journey before any substantive information-gathering was conducted.[77] The Government was clear that "no questions relating to the basis of the claim" were to be asked during screening.[78]

70. But there was widespread concern as to how the screening process worked in practice. Alison Harvey, General Secretary of ILPA, expressed "grave concerns" about screening, saying that it was "aiming to do far too much" and was a "disastrous model doomed to failure".[79] The Refugee Council thought that having such procedures at the very outset was "very detrimental to children".[80] The Northern Ireland Commissioner for Children and Young People called screening facilities "totally inadequate", and said they were not "young person friendly".[81] Baljeet Sandhu, of the Migrant and Refugee Children's Legal Centre at the Islington Law Centre, suggested that the screening process could often be "very frightening".[82]

71. There were also more general concerns about the efficacy of the information-gathering process as a whole. The Refugee Council and ILPA raised concerns about delays and administrative backlogs.[83] It was also suggested that the answers given during screening were later used to damage the credibility of an asylum claim.[84] A particular theme in evidence related to the adequacy and availability of interpreting facilities, and their impact on children's abilities to articulate their concerns.[85] Barnardo's suggested that interpreters often lacked experience of the asylum process generally, and of working with children in particular,[86]while the Law Centre (Northern Ireland) said that delays were common in securing interpreting services.[87]

72. There was also a sense that information-gathering failed to give sufficient regard to the age and status of the child, in terms of the length of interviews, and the techniques and reasoning employed during questioning.[88] Ilona Pinter, Policy Adviser on Young Refugees and Migrants at the Children's Society, said that "minimal adaptations" were made for children".[89] The Northern Ireland Commissioner for Children and Young People agreed that there was a need for a more "young person friendly" environment.[90] ILPA noted that the system as a whole was "incomprehensible to most adults [...] It is unsurprising that it vexes these children as well".[91] The Children's Commissioner for England agreed with these concerns, and noted that making changes in this respect "cannot just be at the point of entry".[92]

73. The Minister acknowledged that there were "bound to be cases in which people do not do as the policy sets out", but he did not believe that there was a "systemic problem", or that difficulties with screening and information-gathering were widespread".[93]

74. We are grateful for the work of the Office of the Children's Commissioner for England in this area, particularly in relation to screening. Its two reports, Landing in Dover[94] and Landing in Kent,[95] provide a clear window into some of the problems that are faced by children when they first enter the country, often after traumatic experiences on the way.

75. Those reports, and evidence to this inquiry, make clear that there is an insufficient focus on the needs of children when gathering information about them during the asylum and immigration process. This begins with screening, but the concerns we heard addressed the system more widely, including the substantive process of interviewing children and assessing their claims.

76. The gathering of substantive information on a child's claim for asylum or other protection should come well after the screening process, to allow children to be settled and to articulate their views properly. Guidance distinguishes clearly between the two stages of the process, but our evidence indicates that screening too often blurs into wider information-gathering. This must change, to bring children's best interests to the fore.

77. A new asylum and immigration process introduced in April 2013 reformed how the system operates. The system will now operate on a hub model nationally, and will seek to focus on priority cases more quickly.[96] It remains to be seen how these changes will work in practice, but the Coram Children's Legal Centre expressed concern that the changes would "undermine the idea of a child-focused determination".[97] We will remain alert to how the system operates, but note that there is simply too little evidence to draw any conclusions at this stage. We urge the Government to work hard to ensure that this new system adheres to the model we have outlined above.

78. The Government should ensure that there is a clear focus on welfare needs aw well as immigration control when gathering information from unaccompanied migrant children relating to an asylum claim. There should be a clear and well-understood distinction between the screening process and substantive information-gathering. Screening a child should be expressly limited to gathering biographical and biometric data at the outset of a claim, while gathering information with which to assess a claim should begin only when children are settled and supported. Furthermore, children should be provided with proper access to interpreting facilities and rest periods, and should be engaged with in a way that takes proper account of their age, status and background.

AGE ASSESSMENTS

79. The assessment of an applicant's age has, over recent years, become increasingly prominent in the asylum and immigration process. The correct assessment of an applicant who is under 18 years of age is necessary to ensure that the United Kingdom upholds its domestic and international obligations to those who are children. If assessed incorrectly, children could be accommodated inappropriately, supported insufficiently, and be placed at risk of harm, detention and deportation.

80. The age of an applicant is assessed in various ways. In the first instance the immigration authorities will take an initial view as to whether an individual is under 18 years of age when the asylum claim is made. The Government insisted that where a person claimed to be below the age of 18 in those circumstances, the benefit of the doubt was given unless two agency officers of sufficient grade concluded that the individual's physical appearance or demeanour "very strongly suggests that they are significantly over 18", or there was credible documentary evidence to that effect. It indicated that no person would be detained when claiming to be a child unless one or other condition was met.

81. Where this is not the case, a referral will be made to a local authority in order that a full age assessment can be conducted in line with the duties established in R (B) v London Borough of Merton, which set out that local authorities must assess age where an individual may be a young person entitled to support under the Children Act 1989. According to the conditions laid down in that case, such assessments, conducted by two social workers, should be comprehensive, clear and fair.[98]The Government noted that it would usually accept the findings of such a determination, and if not that it would seek to reach consensus with the local authority by sharing relevant information.[99]

82. Where an applicant disagrees with the assessment made by a local authority, he or she can seek judicial review of the decision, and the court's determination of age binds both parties.[100] The Government indicated that it would also respect a determination by an immigration judge, unless compelling evidence to the contrary had emerged since the judgment and had not been the subject of direct adjudication.[101]

AGE DISPUTE DATA

83. Over the last five years, age was disputed in around 30% of cases of unaccompanied asylum-seeking children presenting a claim. The overall number of cases where age is disputed has fallen, and there has also been a fall in the proportion of cases where age is disputed (See Table 1).

Table 1: Age dispute figures in the last five years

Source: Home Office immigration statistics[102]

Year	Asylum applications from unaccompanied asylum-seeking children	Age dispute cases	Percentage of unaccompanied asylum-seeking children whose age is disputed after an asylum application
2008	4,285	1,401	33%
2009	3,174	1,129	36%
2010	1,717	489	28%
2011	1,398	374	27%
2012	1,168	328	28%

84. There was a widespread view that the data available were insufficient.[103] The Children's Commissioner for England noted that the immigration authorities were not recording cases for those considered to be "significantly" above 18, as a result of a policy change in 2007,[104] though the UK Children's Commissioners noted an "encouraging communication" regarding a possible pilot of more detailed data recording by the immigration authorities.[105]

85. The Coram Children's Legal Centre noted that the immigration authorities did not "publicly report on all cases where age is disputed", while there were "limited alternative sources of information".[106] It was particularly concerned with the lack of clarity around cases of individuals whose age was disputed being detained as adults.[107] The Refugee Children's Consortium also noted that there were no means to monitor cases as they progressed through the system.[108] The UK Children's Commissioners insisted that effective, disaggregated data was required, including outcome data.[109]

86. The Government said that it had "no reason to believe" that the fall in case numbers was because of recording failures, a point echoed by Philip Ishola of the Association of Directors of Children's Services (ADCS) and Croydon Council.[110] However, the Government was considering undertaking a formal assessment of compliance with the requirement to record age dispute cases.[111]

87. The case for providing comprehensive, robust and transparent data is absolutely clear. It is only by doing so that policy and practice can be properly examined, and issues identified. We therefore endorse the call for full, disaggregated statistics to be provided for all age dispute cases, to enable cases to be tracked through the system.

88. We recommend that the Government should record and publish statistics of all those who claim to be children whose age is disputed. This should include, but not be limited to:

— The number of asylum applicants who claim to be children but who are treated as adults by the immigration authorities on the ground that their appearance or demeanour very strongly suggest that they are significantly over 18;

— The number of cases where an individual claiming to be a child is placed in immigration detention, and any subsequent action in relation to those cases;

— The number of cases in which age is assessed by local authorities, and, in such cases, how many children are determined to be adults and how many are determined to be children;

— The number of cases that are challenged by judicial review, and the number of such challenges that are successful.

89. These statistics should be disaggregated to allow scrutiny of the gender and nationality of all cases. Local authorities should also be required to produce statistics for any cases where those requesting support and claiming to be children emerge outside of the usual asylum and immigration processes.

THE EFFECTIVENESS OF AGE ASSESSMENT

90. Regardless of the quality of the data, it is important that the process of assessing age is accurate and sensitive to the needs of children. Witnesses suggested that there was a strong "culture of disbelief" in the process.[112] Asylum Aid said that immigration authorities seemed "to dispute the age of child applicants as a matter of default".[113] The Refugee Council said that this meant there were "hundreds of children going through unnecessary assessments about their age".[114] The Children's Society thought that the culture of disbelief put children at risk of harm and exploitation, and failed to pay heed to the best interests of the child.[115] Indeed, ECPAT thought the act of disbelief itself had consequences for the mental health of unaccompanied children.[116]

91. The Office of the Children's Commissioner for England was particularly vociferous, noting that disputes between immigration authorities and local authorities over age had a serious impact on the support available to children.[117] Dost said that much of the current process was "really quite meaningless and a massive waste of resources", as cases were often about the specific age of a child who was recognised as below the age of 18 in any case.[118] ECPAT said there was an "over-reliance on physical appearance and credibility as indicators of age".[119] Her Majesty's Inspectorate of Prisons expressed particular concern about the use of the appearance-based test by immigration authorities, which it did not consider "sufficiently robust", particularly as detention could result from a negative determination.[120]

92. Some witnesses considered there to be a potential conflict of interest in the process, as local authorities were responsible for assessments and were also liable for the costs of those determined to be children as a result.[121] There was therefore a concern that funding pressures could be incentivising local authorities to assess children either as adults, or as older than would otherwise be the case. Some also noted that local authority grant funding arrangements, which rely on age assessments being conducted within 21 days, provided an unhelpful incentive to complete age assessments too quickly.[122] The Children's Commissioner for England also expressed concern over the level of training given to those staff carrying out the assessments.[123] This reflected the view of many witnesses that the age assessment process varied inconsistently between local authorities, and indeed immigration authorities, due to a lack of statutory guidance.[124]

93. Many witnesses called for those claiming to be less than 18 years of age to be given the benefit of the doubt more regularly, as part of a more sensitive process with clear guidelines for practitioners and the courts to that effect.[125] The Refugee Council thought that a more sensitive determination process, with multi-disciplinary input, would "take an awful lot of heat out of this, and save a lot of time and money".[126]

94. There was also a widespread call for more independence in the process. Some, including the UNHCR, insisted that age assessments should at least be kept separate from the asylum process.[127] Others called for an entirely independent process. Vaughan Jones, Chief Executive of the voluntary organisation Praxis Community Projects (Praxis) said it was "pretty obvious" that there should be a single age assessment process, undertaken by an independent organisation.[128]The Refugee Council thought a regional assessment centre model would be a "very good approach".[129] The Office of the Children's Commissioner for England thought that an independent panel might provide a "more transparent, fairer process for assessing age", although it acknowledged that it may be "too costly to establish in the current financial climate".[130]

95. Some witnesses opposed such fundamental reform. Dost feared that a large multi-agency panel could be intimidating for children.[131] ILPA was "anxious" not to "build an institution that then demanded a throughput of children".[132] Kent County Council said any proposal for a multi-agency approach would need "careful consideration to ascertain what the additional partners would bring to the process and which agencies would be involved".[133]

96. There was, however, strong support for greater multi-agency involvement in the existing process. The Children's Society thought a "multi-agency approach, whereby social workers, paediatricians, support workers, teachers and all those who are involved in the child's life can contribute, is really the best approach".[134]

97. The Minister noted the practical difficulty of assessing age: "it is not a science, it is an art".[135] However, the Government said that careful decisions were reached following consideration of all available evidence, and it was keen to examine and continuously improve the process. The Minister highlighted in that context proposals from the Royal College of Paediatrics and Child Health (RCPCH) to involve paediatricians in age assessments.[136] The RCPCH said that such guidance would allow the "vitally important" skills of paediatricians to contribute to a more multi-agency approach, but noted it had not yet been supported with Government funding.[137]

98. Our predecessor Committee expressed significant concerns regarding the process of assessing age.[138]It was not convinced that the benefit of the doubt was being given often enough. It wanted to see the age assessment process reformed to ensure that it was robust and considered a wide range of evidence, with the caveat that such evidence should not include x-rays. It also wanted to ensure more training for those involved in age assessments, and to prevent the detention of those claiming to be children.

99. We note with disappointment that many of these recommendations made in 2007 and 2009 remain unfulfilled. The "culture of disbelief" remains of concern, there is still too little input from relevant professionals, and the potential for inconsistency persists. Furthermore, there remains a continuing risk of detention for those claiming to be children, despite the Government's commitment to end child detention. Improving the process of age assessments is therefore of paramount importance, especially given the inertia since our predecessor Committee's last report.

100. Those whose ages are disputed should be given the benefit of the doubt unless there are compelling factors to the contrary. Doing so could save significant sums of money—between April 2011 and the end of 2012, Croydon Borough Council spent £1.6m on legal costs related to age assessments[139]—which could be better spent providing effective support to children, particularly where disputes pertain to those who would be recognised by both parties as below the age of 18. This is particularly important where those whose age is disputed are at risk of detention or fast-track removal.[140] The risks of treating a child as an adult in such circumstances far outweigh the risks and costs of giving the benefit of the doubt to a person later assessed to be an adult.

101. We agree that the solution is not a new system of independent age assessment panels, especially as such a system could encourage a high caseload to justify its existence. It would be more effective and realistic to seek change within the existing framework. To do so, the Government should work to develop good practice in local authorities. Some local authorities and the Association of Directors' of Children's Services have already worked to produce informal guides to case law and practice, but these are insufficient to drive truly consistent approaches. Clear guidance issued by the Government, would provide a strong steer towards a more effective system.[141] Guidance could also draw upon the Separated Children in Europe Statement of Good Practice.[142]

102. Any guidance produced to assist local authorities in the complex and difficult process should insist upon the involvement of a far more diverse range of professionals than at present. Local authority professionals should be trained to play a central role (see para x), but expert assistance should be welcomed as a means to ensure the process is more robust. Supporting the proposals from the RCPCH could be a starting point. Not only would more widespread input improve the accuracy of the process, it may also discourage expensive litigation. Guidance should make clear that x-rays should play no part in assessing the age of a child.[143]

103. We recommend that the Government work alongside the Association of Directors of Children's Services to develop a clear set of statutory guidelines for assessing the age of unaccompanied migrant children. This guidance should make clear that young people should be given the benefit of the doubt unless there are compelling grounds to discount their claim. It should also make clear that any person who claims to be a child whose age is disputed and who is to be assessed by local authorities or in judicial review proceedings is not to be made eligible for fast-track removal from the United Kingdom. Guidance should also ensure that examinations are never forced, nor culturally inappropriate, and always pursue the least invasive option for assessment.

104. As part of developing age assessment guidance, the Government should evaluate how to incorporate a greater range of expert input into the process. In particular, the Government should commission the Royal College of Paediatric and Child Health to develop guidelines for a stronger contribution from paediatric consultants in assessing age.

105. We see no reason to depart from our predecessor Committee's view that x-rays should not be used in assessing age.

DECISION-MAKING

106. Considering the best interests of unaccompanied migrant children requires an effective framework for making decisions on their future, so as to allow children to develop to their maximum potential, as called for under Article 6 of the UNCRC. The UN Committee on the Rights of the Child stresses that the plans made for children must be "durable"—sustainable, giving protection from harm and meeting the needs of the UNCRC.[144]

107. Children who arrive unaccompanied into the United Kingdom and who claim asylum are first subject to a decision as to whether to grant refugee status or another form of humanitarian protection. If protection is granted, then the child has leave to remain in the country by virtue of that status. If the claim is refused, and there are no suitable reception arrangements in the country of origin, then a period of discretionary leave will be granted until the age of 17 and a half or for 30 months, whichever is shorter. At the end of that period, the child has the opportunity to submit a further application for leave. Both asylum and leave determinations are subject to appeal and judicial review where a child has leave to remain exceeding 12 months.[145]

108. Many witnesses highlighted that discretionary leave was by far the most common determination in cases featuring unaccompanied asylum-seeking children.[146] This is borne out by the statistics over the past five years (see Table 2). In 2012 around 40% of the initial decisions for unaccompanied asylum-seeking children resulted in grants of discretionary leave—a proportion that increased to more than half when the initial decision was made when the child was 17 or under—while less than a quarter were granted asylum. In comparison, asylum was granted in around about 30% of adult cases in the same period.[147] However, the proportion of cases in which asylum is granted to children has increased over time.

Table 2: Initial asylum decisions for unaccompanied migrant children, UK totals in the last five years

Source: Home Office immigration statistics[148]

Year Total initial decisions Grants of asylum or humanitarian protection Refused asylum, granted discretionary leave to remain Outright refusal (including on on-compliance and third country grounds)

2008 3,377 10.4% 53.2% 36.4%

2009 3,479 10.5% 55.8% 33.7%

2010 2,359 14.4% 47.2% 38.4%

2011 1,353 18.5% 45.6% 35.9%

2012 870 24.1% 39.8% 36.1%

109. The Government insisted the decision making process was "robust and thorough", and enabled children "to approach adulthood knowing what their immigration status is". This, it said, represented the "durable solution that is required to enable the child to plan for their future", upholding the best interests of children.[149] Croydon Council said that limited leave was "realistic" and allowed for the situation to be re-appraised at a point when it could be possible to return a child.[150]

110. Many witnesses disagreed. The UNHCR considered that discretionary leave was used too readily, with considerable variation in practice. It noted that "child-specific forms of persecution" were not being recognised, leading to grants of "a lower form of leave".[151] It thought that this reflected a failure to consider asylum claims made by children properly, and was a further instance of immigration policy taking precedence over children's best interests.[152] For some, the main issue was the lack of credibility given to children making claims. Asylum Aid thought the process burdened children "with far too high a standard of proof", leading to fewer grants of asylum as a result.[153]

111. For a number of witnesses, the grant of discretionary leave did not represent a durable solution.[154] The Children's Commissioner for England said discretionary leave was "much more like a stay of execution than anything else".[155] The Refugee Children's Consortium considered the granting of discretionary leave an unsatisfactory "limbo" that could compound the distress involved in making an asylum claim.[156] ILPA thought it was especially lacking in durability owing to the limited system of appeals when leave is granted for less than a year.[157] The NSPCC said this was exacerbated by a widespread lack of understanding about appeal rights.[158] A linked concern related to the difficulty of claiming further leave upon reaching 18,[159] even though some children whose claims were refused would not be able to return in any case.[160]

112. The Children's Society also thought that the uncertainty and instability of discretionary leave hampered the transition into adulthood, particularly in the pathway planning process (see paragraph 192).[161] Barnardo's agreed, stating that the grant of discretionary leave could leave young people "anxious and de-motivated" as they feared losing the way of life and ties they had built in the United Kingdom.[162] It thought that trafficked young people were particularly vulnerable to such effects.[163] Delays were also of concern. Jim Wade, a Senior Research Fellow at York University, noted that he had found that 80% of young people in one study were waiting for a final status determination; the uncertainty, he said, led to children living "with a foreshortened sense of the future".[164] Witnesses drew attention to the impact of such uncertainty on children's development.[165]

113. A number of witnesses also noted that unaccompanied migrant children who were granted the right to remain in the United Kingdom did not have a right to family reunion, despite such a right being afforded to adults in the same situation. The Office of the Children's Commissioner for England considered the failure to grant reunion rights contrary to the UNCRC.[166] It was not persuaded that allowing reunion would lead to families sending their children to the UK in order that they could join them at a later date.

114. The Refugee Council called for more pragmatic decision-making that recognised that earlier grants of refugee status may be more appropriate than delaying decisions until children approached adulthood.[167] The UNHCR agreed: it said that postponing decisions only increased anxiety and emotional harm, and contravened the child's best interests by taking away the safeguards offered by the UNCRC.[168] Coram Children's Legal Centre said that, if decisions were to continue to be made in that way, it was at least better to do so at 18 rather than 17 and a half, to allow further education or other qualifications to be completed.[169] The Children's Society argued that the decision-making system in Sweden took a far more child-focused approach, giving prominence to integration and development, and recommended it as a suitable alternative model.[170]

115. Coram Children's Legal Centre wanted to see fundamental change to the framework within which decisions were made, to move to a system akin to care proceedings in the family courts.[171] It also sought the establishment of a pilot court along the same lines as the Family Drug and Alcohol Court used in family proceedings where there were issues relating to substance abuse in a number of London boroughs, with the court given the flexibility to take on decision-making in a more collaborative manner.[172]

116. For some witnesses, the best course was to grant indefinite leave far more often to allow children to plan for the future. Praxis thought this would allow for clear pathway plans to be established and for children to access education at domestic rates (see paragraph 218).[173] Dost agreed, arguing that it would make a "phenomenal difference", particularly for educational ambitions, and lead to a far greater sense of security.[174]

117. The Minister, however, insisted that any widespread system of granting indefinite leave to remain would be "misconceived".[175] He stressed that to do so would "incentivise people to have children travel alone", which would "drive a coach and horses through the asylum system".[176] He accepted that there may be a case for setting out the decision-making process more clearly to children,[177] as well as delaying decisions at least until further education had been completed at age 18,[178] but did not support any fundamental change in the decision-making process for unaccompanied asylum-seeking children.

118. The current decision-making framework is clearly unsatisfactory. The widespread granting of discretionary leave to remain, with further determinations delayed until just before adulthood, serves administrative convenience more than the best interests of children. We are particularly concerned because it appears that asylum claims are not being properly considered because of the availability of discretionary leave. Making decisions in this manner requires children to relive earlier traumas, punctuates children's formative years with uncertainty, and inhibits access to services and to the labour market in the future. This uncertainty is only worsened by slow processes and limited appeal rights for those with leave of less than 12 months.

119. Asylum claims must be properly determined in all cases regardless of age under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. The determination must be sensitive to the needs and experiences of children seeking asylum. Children should be provided with funded specialist legal advice and representation during this process. Where a child is granted refugee status he or she should have the possibility of being reunited with family members, as is the case for adults in the same situation.

120. We recommend that the Government amend the eligibility requirements under section 83 of the Nationality, Immigration and Asylum Act 2002 to ensure that appeal rights are available for all those subject to a negative decision in relation to an asylum or leave claim, regardless of the remaining period.

121. Where an asylum claim is refused but a child cannot be returned during their childhood, it is right that other forms of leave are granted. However it would give more certainty to children if proper consideration could be given to the future early on, with decisions based upon country of origin reports, engagement with the child and an evaluation of the ties they have formed in the United Kingdom. We acknowledge the Minister's concerns as to the possible resource implications of more widespread grants of further leave to remain, but the alternative merely passes on costs to local authorities (see paragraph 201) as well as being detrimental to the children affected.

122. Where children are granted discretionary leave, we recommend that the leave period should run until the age of 18, in accordance with the definition of a child in Article 1 of the UNCRC.

123. During a period of discretionary leave, decision-making should be encouraged as soon as there is sufficient evidence against which to evaluate a claim. Where it is in the best interests of the child to remain in the United Kingdom, indefinite leave to remain should be granted as early as that judgment can be made, to enable children to access higher education and enter the labour market. Where return is considered to be appropriate, a care plan should be constructed to inform and prepare a child for return in adulthood. In either case, support should persist until the objectives of a properly considered care plan are met.

124. There may also be benefits to establishing decision-making on a more child-friendly footing that borrows from care proceedings under the Children Act 1989, though we are not convinced that it is currently realistic to call for a fundamental restructuring of the court system. We do consider, however, that there is merit in establishing a pilot tribunal with adapted procedures to take on decision-making responsibilities in some cases. The pilot should be conducted on a similar scale to that of the Family Drug and Alcohol Court.

125. We recommend the establishment of a pilot tribunal with adapted procedures, drawing on expertise from both the child and family and immigration courts, to take on responsibility for the decision-making, welfare and support arrangements of unaccompanied asylum-seeking children in a small number of cases. Its work should be independently reviewed, in order to identify possible adaptations to the decision-making framework more generally that may emerge.

PROTECTING TRAFFICKED CHILDREN

THE NATIONAL REFERRAL MECHANISM

126. Some children who arrive in the United Kingdom have been trafficked, most commonly for the purpose of work or sexual exploitation. Although such children do not necessarily apply for asylum or other protection, support must be provided. To that end, the National Referral Mechanism (NRM), introduced in 2009 in order to meet the UK's obligations under the Council of Europe Convention on Action against Trafficking in Human Beings, provides a framework for helping young people suspected of being trafficked. It is intended to provide for either voluntary return to the country of origin or a grant of discretionary leave. The process is described in Box 2.

Box 2: NRM
Source: Material summarised and adapted from the Serious Organised Crime Agency website[179]
To be referred to the NRM, victims must be referred to one of the UK's two competent authorities - the UK Human Trafficking Centre (UKHTC) for cases involving referrals from the police, some NGOs or local authorities, or the immigration authorities where cases emerge during the immigration process. The referral is made by a body authorised for the purpose, such as the police and local authorities. These are known as "first responders".

After referral, a case is assessed and a decision is made as to whether there are "reasonable grounds" to believe the individual is a victim of trafficking. The threshold is that a case manager "believes but cannot prove" that the individual is a potential victim of trafficking.
If the decision is affirmative, the potential victim will be allocated a place within safe house accommodation, and if required granted a recovery and reflection period of 45 days. During that period, further information is gathered, following which a conclusive decision is made, for which the threshold is that on is that on the balance of probability "it is more likely than not" that the individual is a victim of human trafficking.

After that, the victim may be granted discretionary leave to remain in the UK for one year to allow them to co-operate fully in any police investigation and subsequent prosecution. The period of discretionary leave can be extended if required. If a victim of trafficking is not involved in the criminal justice process, the authorities may consider a grant of discretionary leave, which would usually be the case for unaccompanied migrant children in line with usual decision-making practice. Victims can also receive help and financial assistance to return home.

If the person concerned is not determined to be a victim of trafficking, then they will be referred to a law enforcement agency if appropriate, or otherwise processed in line with usual asylum and immigration processes.

A determination under the NRM can only be challenged by judicial review

127. This is one of a number of developments since our predecessor Committee last reported on the issue of trafficking.[180] Other developments include the development of a human trafficking strategy,[181] the introduction of statutory guidance to support national and local agencies in helping trafficked children,[182]and the passage of an EU Trafficking Directive which includes a requirement to appoint a guardian for trafficked children (see paragraph 173).[183] We are pleased to see this heightened awareness of the importance of combating human trafficking.

128. The Government insisted that the NRM was a "valuable framework for ensuring important information about a child's potential trafficking is recognised and shared appropriately with the relevant agencies". It said that a referral under the NRM allowed victims to "receive the bespoke support and care they need as victims of trafficking", and allowed support services to "focus on the particular needs that a trafficked child/unaccompanied trafficked child is likely to have".[184]

129. The Government also noted that it had worked to raise awareness of the NRM, including through the provision of designated training for decision-makers, and the development of targeted materials to help practitioners in children's services to understand the process. It said that the increase in the number of referrals—from 186 in 2010, to 234 in 2011, and 373 in 2012—demonstrated "that the use of the NRM is becoming more widespread as its value as a collaborative framework is recognised".[185]

130. Nevertheless, many witnesses thought that the NRM was ineffective and was failing to identify trafficked children. UNICEF UK, while acknowledging that the NRM was an "achievement", said that there was "certainly space for improvement" in expediting the identification of child victims of trafficking".[186]The Scottish Commissioner for Children and Young People said that the NRM was not "fit for purpose", with low numbers of children receiving positive determinations under the system.[187] The Children's Commissioner for England noted that high-risk groups "continue to go missing from care and, we must assume, fall into the hands of traffickers", despite a protective duty under Article 19 of the UNCRC.[188] The Refugee Children's Consortium queried the benefits of referral under the system, and said that there was a "lack of trust in the effectiveness of the process" among frontline agencies.[189]

131. Indeed, a report from the UK Human Trafficking Centre, one of the two competent authorities under the NRM, found that fewer than half of the 2,000 potential victims encountered in 2011 were referred into the NRM.[190] The UK Children's Commissioners noted a significantly higher positive determination rate in cases examined by the UKHTC compared to those made by the immigration authorities, the other competent authority under the NRM, and a higher rate of positive determinations in cases featuring adults.[191] They were therefore concerned at the lack of an independent review into the scheme, which they thought left the NRM open to "criticism of poor decision making, unfairness and bias".[192]

132. Criticism of the awareness and training levels of the safeguarding workforce was widespread.[193] ECPAT and the UK Children's Commissioners noted that a survey of local authorities suggested that only eight—a quarter of those surveyed—had confirmed their implementation of the London Safeguarding Trafficked Children Toolkit and Practical Guidance, materials designed by the London Local Children Safeguarding Board to assist local authorities in tackling child trafficking.[194] Her Majesty's Inspectorate of Prisons said that referrals from prison were not "consistent", and that not all immigration authority staff were "fully trained in child protection and welfare".[195]

133. The ADCS was also concerned about the lack of a statutory framework for the system, which meant there were no formal timescales and no duties incumbent upon agencies to make referrals into the system.[196] The UK Children's Commissioners said that "these structural flaws lead to a variable quality of referral and may contribute to an overall picture of under recording and reporting, low recognition rates, prosecution of victims, low levels of investigation by the police and placing victims back into the hands of their traffickers".[197] ECPAT also criticised the "ineffectiveness" of the Inter-Departmental Ministerial Group on human trafficking, the steering group established to co-ordinate efforts in this area.[198]

134. Witnesses identified a number of possible avenues for reform. Some wanted to see the existing system improved by granting the power to make referrals into the NRM to a wider range of bodies. ILPA argued that immigration solicitors should be so empowered,[199] while others thought that powers should be granted to those working in the youth justice estate (see para 152).[200]The UK Children's Commissioners also wanted to see a keener sense of awareness among all those who already had first responder status.[201]

135. Others wanted more fundamental reform of the system. UNICEF UK, highlighting the support of the Council of Europe's trafficking monitoring body for more decentralised decision-making,[202] supported decentralisation in the devolved context.[203] The Scottish Commissioner for Children and Young People agreed: he said there were people "who could be acting as the competent authority who are closest to those children, but who do not actually have capacity to do that because of the way that it has been set up".[204] The UK Children's Commissioners thought that the competent authorities should "at least include the child care professional organisations that provide the child with safe accommodation and care",[205] while the Refugee Council thought that making the process independent from the Home Office "might be a big step forward".[206]

136. We welcome the development of the National Referral Mechanism and the framework it provides to meet the needs of children who have been trafficked. However, we are concerned by the negative reports of its operation in practice, particularly regarding the differential determination rates within the system. We are also concerned that its operation has not yet been reviewed.

137. We also agree that there should be greater awareness of the NRM and its requirements among the safeguarding workforce. Otherwise, the Government's good work, including the dissemination of an NRM pack for local authority staff, could be wasted. There is scope to take this work further as part of a broader training drive.

138. Finally, we are persuaded by the case for greater independence in the operation of the NRM. The low level of NRM determinations by the immigration authorities fails to dispel perceptions of an inherent conflict of interest, which could undermine goodwill towards the mechanism and put trust in the system at risk. At the same time, we support central oversight of the determinations process with a view to achieving greater consistency, and we do not support instituting more bodies as "competent authorities" under the scheme.

139. We consider instead that the UKHTC should be vested with responsibility as the sole "competent authority" under the NRM. Though not an independent body, it receives input from a range of agencies, and is supported by civil society organisations. It would be a suitable body to provide leadership in this area, and could take on the role more quickly than if responsibility were to be devolved to an entirely separate body. It should, however, be properly resourced to enable it to decentralise its operations to ensure it is a visible organisation with credibility across the country. The reconfiguration of the immigration authorities provides an opportunity to effect this change.

140. We recommend that the Government commission an independent review of the operation of the National Referral Mechanism, which should in particular consider whether a statutory framework for the mechanism is necessary.

141. We recommend that the Government integrate NRM training into pre- and post-qualifying training for the safeguarding workforce (see paragraph 56).

142. We recommend that the UK Human Trafficking Centre be given sole responsibility as the "competent authority" under the NRM. The Government should ensure that the UKHTC is properly resourced to engage other agencies in its work and to foster trust and support for the system at a local level.

DATA COLLECTION AND OVERSIGHT

143. There was widespread concern that the NRM was insufficiently transparent. At present the Inter-Departmental Ministerial Group on Human Trafficking reports to Parliament, a process designed to inform public debate. However, the UK Children's Commissioners criticised the present picture given of trafficking as "incomplete". They said the combination of NRM referral figures, which they considered under-estimated case numbers, and the lack of a centralised tracking and tracing mechanism, led to a systematic under-reporting of cases and a lack of detailed outcome data.[207]ECPAT agreed that there was a "lack of reliable and representative data" on the scale of trafficking.[208] The Office of the Children's Commissioner for England was also concerned that there had not yet been a formal assessment of the number of young people in either youth or adult custody who were victims of trafficking.[209]

144. Several witnesses accordingly called for the institution of an independent anti-trafficking co-ordinator to monitor arrangements with respect to trafficked children. ECPAT thought an independent mechanism with a specific focus on data collection was "essential".[210] The UK Children's Commissioners argued that an independent post with oversight of the NRM would avoid the present perception of a conflict of interest.[211]

145. It is imperative that the operation of the NRM can be scrutinised by civil society and by Parliament. It is therefore vital that there is a system in place to collect and analyse data about its operation. The Inter-Departmental Ministerial Group on Human Trafficking cannot, by virtue of its nature as policy co-ordination body, provide such oversight independently.

146. We recommend that disaggregated data on human trafficking be collected, monitored and analysed systematically. We recommend that an independent anti-trafficking coordinator be empowered to oversee the dissemination and analysis of such data, to report at least annually.

CRIMINALISATION OF TRAFFICKED CHILDREN

147. Concern was expressed over those children who, rather than being assisted by the NRM, are brought within the criminal justice system as a result of activities undertaken owing to trafficking,[212] Examples cited included trafficked Vietnamese young people working on cannabis farms, and individuals holding false documentation given to them in the process of trafficking.[213]

148. Crown Prosecution Service (CPS)[214] and police authority guidance,[215] which counsel against prosecution or detention where a child is suspected or determined to have been trafficked, is already in place. However, several witnesses expressed concern that staff were unaware of or unfamiliar with the guidance, leading to inconsistency in practice, and called for efforts to improve awareness.[216] The NSPCC stressed that such awareness had to extend to those dealing with children in the prison estate. It called for "first responder" status to be given to trained prison staff, who were "amongst the most skilled practitioners in identifying possible victims of trafficking".[217]

149. The Government stressed its commitment to raising awareness around the criminalisation of children, a "key issue in the Government's Human Trafficking Strategy". It noted that CPS guidance provided mechanisms for the courts and prosecutors to take into account the child's trafficked status, before, during and after prosecution, and made clear that work to ensure that "trafficked children found involved in criminal activity are safeguarded and are not unnecessarily criminalised is ongoing." It wanted local authority staff to be vigilant to the possibility of trafficking, and acknowledged that there was work to be done in this area.[218]

150. Children who are trafficked are victims of crime and should be treated as such. Their involvement in the criminal justice system puts them at risk of further harm, including to their mental health. This is particularly acute where age is disputed and children may be at risk of being detained in adult facilities (see paragraph 80).

151. The Government should demonstrate its commitment to preventing unnecessary criminalisation by developing awareness. To do so it should encourage participation in training, and it should develop targeted materials for relevant staff. Finally, it should give prison staff the tools to contribute to the fight against human trafficking as "first responders".

152. We welcome the production of CPS and police guidance which makes clear that authorities should seek not to prosecute or convict child victims of trafficking unnecessarily. We recommend that the Government develop targeted materials to raise awareness of this guidance and of the NRM among police and CPS staff.

153. We recommend that suitably trained prison and youth offending institution staff be vested with "first responder" status under the NRM, to give them the power to refer possible victims of trafficking into the mechanism.

RETURNS

154. Returning an unaccompanied migrant child, either to their country of origin or to a third country, may be considered appropriate by the immigration authorities in some cases. Return is most often considered where an application for asylum has been refused and the period of leave has ended. It may also be considered in cases where a child has been trafficked, or where a young person chooses to return, as part of a voluntary scheme.[219]

155. There are also international mechanisms that relate to returns. For children who have previously travelled through another European country, enforced removal to that country can be taken forward under the Dublin II Regulation.[220] However, this makes clear that no child should be removed until a clear process has shown that an individual's needs and rights under the UNCRC, including best interests, have been considered.[221]

156. Finally, the European Return Platform for Unaccompanied Minors (ERPUM) brings together a number of governments, including those of the United Kingdom, Sweden, Norway and the Netherlands, to seek to develop a co-ordinated returns mechanism for unaccompanied migrant children whose asylum applications are unsuccessful. Under the scheme, negotiations are ongoing with the governments of Afghanistan and Iraq to put in place arrangements to return children either to family situations or to institutional care.[222]

157. Whatever the mechanism, facilitating the return of a child is a central part of deliberating on a child's future. Where it would benefit a child's long-term emotional and personal development, returning a child could form part of a suitable care plan. It is essential that such decisions are underpinned by a comprehensive and transparent assessment of the best interests of the children concerned.[223]

158. Witnesses expressed widespread concern that best interests were not being assessed thoroughly enough when making returns decisions in relation to unaccompanied migrant children.[224] Some witnesses thought this was a reflection of the fact that there was insufficient information on which to base a decision, and too little sensitivity shown in assessing that information. Dr Christine Mounge, a social anthropologist working with unaccompanied migrant children, thought those factors precluded a "balanced consideration" of the best interests of children.[225] The Children's Society called for more attention to be paid to experiences and ties formed in the United Kingdom when considering the question of returns.[226] ILPA called for post-return evaluation as well, to ensure that any arrangements made are shown to be sufficient.[227]

159. Anxiety was expressed over the possibility of returning children to countries where there were ongoing humanitarian issues or conflict. Proposals to return children to Afghanistan and Iraq under the ERPUM were particularly criticised, and witnesses urged the Government not to institute returns while those concerns persisted.[228] The UNHCR put the case simply: "country-of-origin evidence shows that the situation in Afghanistan is really not suitable for children to be returned."[229] Human Rights Watch said that returning children to Afghanistan without proper family tracing could lead to a "real risk of irreparable harm", citing problems in relation to education, healthcare and possible underage military recruitment.[230] The Refugee Council said that discussing returns in such circumstances "illustrates how far we are removed from looking at the best interests of children and the human rights of children".[231]

160. We repeat that the best interests of children must always be at the heart of the returns process. It is legitimate to keep migration policy objectives in mind, as they cannot be divorced from all considerations in this area, but not at the expense of properly determining how to safeguard unaccompanied migrant children. We therefore welcome the strong statement from Cruz Villalòn AG, in a recent case in the European Court of Justice, stressing the importance of considering best interests when making decisions about returns under the Dublin II Regulation.[232]

161. The Government should ensure that decision-makers make child-focused assessments of the overall benefits of returns. Such decisions should be made with the UNCRC in mind. Arrangements need not necessarily be with a family member, but they must be secure and effective, they should support the child's development needs, and they should be evaluated after return.

162. We are deeply concerned that returns are being considered to institutional care facilities in Afghanistan and Iraq under the ERPUM project. There are credible humanitarian concerns as to their suitability as locations for the return of unaccompanied children, as was the case for similar—and aborted—proposals to return children to Albania in 2003.[233] Taking forward proposals for enforced returns before such conditions have abated is in conflict with the UK's obligations under the UNCRC. The Government should either curtail these activities within the platform, or cease cooperation with it.

163. All decisions on returning children to their country of origin should be made only after a full assessment of whether return is in the best interests of the child. Such a decision should be made in the light of a full country-of-origin report framed according to the UNCRC, and after a full assessment of the needs of the child and the care arrangements that they will return to. Return arrangements should also be subject to independent evaluation afterwards to determine their suitability. We recommend that the Government issue clear guidance setting out these standards, including in cases of returns to third countries under the Dublin II Regulation.

164. We recommend that the Government clarify the work it has undertaken with respect to returning children forcibly to Afghanistan and Iraq, particularly in relation to the European Return Platform for Unaccompanied Minors. The Government should affirm that no proposals for enforced returns will be taken forward while conflict or humanitarian concerns persist. If this cannot be guaranteed within the ERPUM, we recommend that the Government withdraw from further participation with the platform.

77 Q85 Back

78 HM Government Back

79 Q15 Back

80 Ibid. Back

81 Q30 Back

82 Q44 Back

83 Refugee Council, ILPA Back

84 Office of the Children's Commissioner for England. See also Rosemary Demin Back

85 Brighter Futures visit, Office of the Children's Commissioner for England, Klevis Kola foundation, Rosemary Demin, Q30 (Children's Commissioner for Wales), Q48 (Baljeet Sandhu) Back

86 Barnardo's. See also Office of the Children's Commissioner for England, UNHCR Back

87 Law Centre (Northern Ireland) Back

88 Refugee Council. NSPCC, Law Centre (Northern Ireland), Refugee Action, Office of the Children's Commissioner for England Back