Legal representation of unaccompanied children
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. 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, which therefore includes a child who is subject to a Dublin procedure.
Unlike the case of adults, the representative 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. 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. 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.
The Immigration Law Practitioners Association (ILPA) produced a good practice guide, but use of the guide is not mandatory. 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. 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.
Difficulties obtaining good quality legal advice (see Regular Procedure: Legal Assistance) also apply to unaccompanied children. Research conducted by the Children’s Society in 2015 showed that the situation had deteriorated since the coming into force of the legal aid restrictions. This research was updated and a new report published in 2017.
Unaccompanied children seeking asylum whose claims are refused are very rarely returned to their country of origin unless they are believed to be over 18. It is standard practice to grant periods of limited leave. This leave is referred to as ‘UASC leave’ – this is granted for 30 months or until the age of 17½, whichever is shorter. Leave can be renewed up to age 17½, but if a further application is made at this stage, then there must be an active review in which their need for protection is considered again, and if this is turned down they may be faced with removal.
Where asylum claims fail, sometimes a family is given discretionary leave on the basis of Article 8 ECHR. The High Court has held that the practice of giving children this limited leave (3 years was the normal policy at the time of the case) conflicts with the duty in Section 55 of the Borders Citizenship and Immigration Act 2009 to have regard to the welfare of children. This does not have a direct impact on the normal practice in the case of unaccompanied children, which is to grant leave until they are 17.5 years, but is an important statement of the impact on children of insecurity of status.
Two new forms of leave were introduced in 2018 relating solely to specific groups of unaccompanied children transferred to the UK from elsewhere in Europe. Those children transferred under section 67 (Dubs’ amendment) who do not qualify for leave as a refugee or subsidiary protection are granted ‘section 67 leave’, initially for five years. A change to the Immigration Rules was made in October 2019 so that these children are granted section 67b leave automatically although they are able to apply for asylum in the usual way. The guidance associated with this change was updated in February 2020. It is described as non-protection based leave but envisaged that a beneficiary will be entitled to settlement after five years.
Children transferred to the UK from Calais to join family members under the Dublin III Regulation, if the transfer took place between 17 October 2016 and 13 July 2017, have similarly been provided with non-protection-based leave if they did not qualify for leave as a refugee or for subsidiary protection. Beneficiaries will be entitled to apply for settlement after ten years.
Policy allows for children’s claims to be certified so it is possible that a child’s appeal is non-suspensive; however, the general policy applies regarding removal of children, so that a certified claim will only result in a non-suspensive appeal if adequate reception arrangements are in place in the child’s country of origin.
3,651 unaccompanied children sought asylum in the UK in 2019.
Heaven Crawley, Working with Children and Young People Subject to Immigration Control, Guidelines for Best Practice, 2nd edition 2012, available at: http://bit.ly/1etJowr. See also ILPA’s Resources Guide for Legal Practitioners Working with Refugee Children Shauna Gillan with Sarah Myerscough and Alison Harvey Fourth Edition March 2014.
The Civil Specification 2010, section 8, Immigration, paragraph 8.
Para 352ZE Immigration Rules.
Statement of change of Immigration Rules, September 2019, available at: https://bit.ly/2tkZNQL.
Home Office, Asylum Statistics Q4 2019.