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

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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© Parliamentary copyright 2013
Prepared 12 June 2013