Conclusions and recommendations
The best interests of the children
1. 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 (Paragraph 31)
2. 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
(Paragraph 32)
3. 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. (Paragraph 33)
Upholding the rights of unaccompanied migrant
children
4. We
recommend that the Government evaluate where responsibility for
areas of policy concerning unaccompanied migrant children should
best lie, to establish whether some policy areas would be more
appropriately overseen by those responsible for safeguarding the
welfare of unaccompanied migrant children. The Government should
then transfer responsibility and funding accordingly. (Paragraph
44)
5. One
area where it would be appropriate to transfer responsibility
would be in the administration of grant funding to local authorities
for the care of unaccompanied migrant children (see also paragraph
211). This should be wholly the responsibility of the Department
of Education, to demonstrate that such funding is given in order
to protect the wellbeing of children. A transfer of responsibilities
would also be suitable should the Government follow our recommendation
regarding the future role of the UK Human Trafficking Centre in
the National Referral Mechanism (see paragraph 141). (Paragraph
45)
6. The
Government should develop a strategy document for dealing with
unaccompanied migrant children which outlines clear lines of responsibility
and detailed service standards in relation to the protection,
health and development of children, as well as long-term care
planning in their best interests. The Department for Education
should be tasked with co-ordinating the development and continuing
oversight of the strategy, and appointing a national lead for
its implementation. (Paragraph 47)
7. We
recommend that the Government work with child welfare and safeguarding
experts to develop a specific training programme to improve awareness
and understanding of the UNCRC and its application to unaccompanied
migrant children, particularly with respect to properly considering
children's best interests. Such a programme, delivered by external
providers, should be rolled out first to staff in frontline immigration
and asylum roles, and to those in local authorities that deal
regularly with unaccompanied migrant children. The programme should
then be rolled out more widely as resources allow. (Paragraph
56)
8. We
welcome the Government's commitment to give greater consideration
to the UNCRC in legislation and policymaking. We welcome also
the provision in the Children and Families Bill which would expressly
empower the Office of the Children's Commissioner for England
to monitor the implementation in England of the UNCRC, and to
publish a report on that monitoring. We expect the Commissioner
to be resourced accordingly. (Paragraph 57)
9. We
recommend that the Government define the role of the Children's
Champion in the immigration authority, confirming that it is invested
with a proactive duty of care to ensure that the agency meets
its international and domestic obligations, and seeks expert input
in exercising that duty. (Paragraph 58)
10. We
also recommend that the UNCRC be used as a metric in departmental
performance monitoring processes within Government for departments
with policy responsibilities that relate to the safeguarding of
unaccompanied migrant children. (Paragraph 59)
11. We
do not express a view as to the merits of incorporating the UNCRC
into domestic law at this stage. We urge the Government to keep
under review the different approaches taken in recognising the
UNCRC in the devolved jurisdictions, in order to evaluate the
case for full incorporation. (Paragraph 65)
Protecting unaccompanied migrant children
12. 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. (Paragraph 78)
13. 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: (Paragraph 88)
— 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.
14. 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. (Paragraph 89)
15. 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. (Paragraph 103)
16. 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. (Paragraph 104)
17. We
see no reason to depart from our predecessor Committee's view
that x-rays should not be used in assessing age. (Paragraph 105)
18. 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 (Paragraph
119)
19. 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. (Paragraph 120)
20. 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. (Paragraph
122)
21. 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. (Paragraph 123)
22. 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. (Paragraph 125)
23. 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. (Paragraph 140)
24. We
recommend that the Government integrate NRM training into pre-
and post-qualifying training for the safeguarding workforce (see
paragraph 56). (Paragraph 141)
25. 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. (Paragraph 142)
26. 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. (Paragraph
146)
27. 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. (Paragraph
152)
28. 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. (Paragraph 153)
29. 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
(Paragraph 163)
30. 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. (Paragraph 164)
Supporting unaccompanied migrant children
31. We
welcome the findings from the Scottish Guardianship Service, which
demonstrate the value that a guardian can add for unaccompanied
asylum seeking and trafficked children. We recommend that the
Government commission pilots in England and Wales that builds
upon and adapts the model of guardianship trialled in Scotland.
The guardian should provide support in relation to the asylum
and immigration process, support services and future planning,
help children develop wider social networks, and ensure that children's
views are heard in all proceedings that affect them. The Government
should evaluate the case for establishing a wider guardianship
scheme throughout England and Wales once those pilot schemes are
complete. (Paragraph 175)
32. We
recommend that the Government conduct or commission a mapping
exercise that sets out a comprehensive picture of local authority
support services for unaccompanied migrant children. This exercise
should in particular seek to identify the best performing local
authorities in order to develop them as centres of excellence
for the benefit of unaccompanied migrant children throughout the
United Kingdom. In the light of this exercise, the Government
should update its guidance provided to children's services in
local authorities to address any gaps that emerge, and link it
to the broader Working Together to Safeguard Children document.
(Paragraph 188)
33. We
recommend that the Government assess the cost-benefit case for
rolling out the pilot safe accommodation scheme for trafficked
children, operated by Barnardo's in conjunction with the Department
for Education, more widely. We support the case for doing so in
principle. (Paragraph 189)
34. Unaccompanied
migrant children must be properly supported in the transition
to adulthood. The Government should ensure that children receive
bespoke and comprehensive plans that focus on educational goals,
reintegration and rehabilitation. Such plans should give proper
consideration to all possible outcomes for the child, including
family reunification and reintegration whether in the home country,
the UK or a third country. Care plans should take full account
of the wishes of the child, and remain applicable up to the age
of 21, or 25 if the young person remains in education, to enable
children to realise their maximum potential. (Paragraph 198)
35. We
recommend that the system for distributing grant funding to local
authorities for the support of unaccompanied migrant children
be administered by the Department for Education (see also paragraph
45). We recommend that such funding should be allocated according
to the real costs that arise in safeguarding unaccompanied migrant
children within each local authority area. (Paragraph 212)
36. We
recommend that the Government amend paragraphs 1(1)(g) - (j) of
Schedule 3 of the Nationality, Immigration and Asylum Act 2002
to ensure that unaccompanied migrant children who have exhausted
their appeal rights receive the full range of leaving care support
to which they would otherwise be entitled, regardless of their
immigration status. The Government should also issue guidance
to make clear to relevant local authorities that support duties
owed to children whose appeal rights are exhausted apply until
such children are given leave to remain, or fail to comply with
refusal directions. (Paragraph 213)
37. The
Government should affirm its commitment to uphold Articles 29
and 30 of the UNCRC and ensure equal access to education to children
regardless of immigration status. It should assess how primary
and secondary education is provided to unaccompanied migrant children,
with a view to ensuring that their educational needs are met.
The Government must ensure that any inequality in provision is
addressed urgently. (Paragraph 218)
38. We
recommend that the Government conduct an immediate assessment
of the availability and quality of legally-aided legal representation
for unaccompanied migrant children in England and Wales. (Paragraph
231)
39. The
Government should pay particular attention to the impact of withdrawing
legal aid for non-asylum immigration cases involving unaccompanied
migrant children when reviewing the changes to legal aid entitlement
effected in the Legal Aid, Sentencing and Punishment of offenders
Act 2012. The Government should give serious consideration in
any such review to the cost-benefit case for providing legal aid
to all unaccompanied migrant children involved in immigration
proceedings. (Paragraph 234)
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