In addition to the social work duty, the Immigration Rules require that the Home Office caseworker takes steps to ensure that an unaccompanied child has a legal representative.[1] The Refugee Council should be notified within 24 hours.
This duty applies to a person who is under 18 or who is being given the benefit of the doubt for the time being. There is no stated exception, and the duty accrues as soon as an asylum application has been made.
Unlike the case of adults, the legal representative is a lawyer who is publicly funded to be present in the asylum interview, and the asylum interview of a child may not take place without a responsible adult present who is not representing the Home Office.
The Home Office has a statutory duty to safeguard and promote the welfare of children in the UK who are subject to its procedures.[2] The duty of a representative of a child includes ensuring that this duty is complied with at all stages of the asylum process and to challenge where it is not. The code of practice for implementing Section 55 of the Borders Citizenship and Immigration Act 2009, ‘Every Child Matters’, which is binding on Home Office officers, requires that the voice of the child is heard in the proceedings, and this was reiterated by the Supreme Court, affirming that the wishes and feelings of the child must be taken properly into account by decision makers.[3] The representative accordingly has a duty to ensure that they take the child’s own independent instructions and that these form the basis of their representations.
In order to receive public funding for representing a refugee child, a solicitor must be accredited at Level 2 of the Immigration and Asylum Accreditation Scheme. The Legal Aid Agency framework for authorising legal aid payment requires that work with refugee children is carried out by a senior caseworker at level 2 or above, who has had an Enhanced Disclosure and Barring Service (often referred to as DBS) check in the previous two years. A publicly funded immigration adviser of a child asylum seeker is under an obligation to refer the child for public law advice where the child has difficulties with the local authority carrying out its duties towards them under the Children Act 1989.[4] A child is entitled to have a publicly funded legal representative at their initial asylum interview, but only where the Home Office does not dispute that the claimant is a child.[5]
Difficulties obtaining good quality legal advice (see Regular Procedure: Legal Assistance) also apply to unaccompanied children.
In Scotland an unaccompanied asylum seeking child will be appointed an independent guardian to support them through the asylum process.[6] A similar system is available in Northern Ireland where the child has or is suspected to have been trafficked and for migrant children and young people arriving in Northern Ireland who are separated from an adult who has parental responsibility for them.[7] This is not available in England and Wales. These guardians are not legal representatives as the term is understood in the UK, i.e. they do not provide legal representation and/or advice to the children in their care.
[1] Para 352ZA Immigration Rules, Part 11.
[2] Section 55 BCIA 2009, available at: http://bit.ly/1L4XlOC.
[3] Supreme Court, ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, 1 February 2011, available at: http://bit.ly/2juhDe8.
[4] The Civil Specification 2010, section 8, Immigration, paragraph 8.
[5] The Civil Legal Aid (Immigration Interviews) (Exceptions) Regulations 2012 SI No. 2683, available at: http://bit.ly/1Bs5dX3.
[6] Scottish government, ‘Refugees and asylum seekers’, accessed 24 March 2024, available at: https://bit.ly/4bMHVOT.
[7] Department of Health, IGS Guidance – Section 21 of Modern Trafficking and Exploitation Act 2015, 16 August 2023, available at: https://tinyurl.com/2d23f93f.