Report of the Special Rapporteur on the human rights of migrants, Addendum : Mission to the United Kingdom of Great Britain and Northern Ireland

Extracts: Report submitted by the Special Rapporteur on the human rights of migrants, Jorge Bustamante, on his mission to the United Kingdom of Great Britain and Northern Ireland 22–26 June 2009

Publication Date 16 March 2010

Human Rights of migrants in UK – United Nations report
Report from the UN Special Rapporteur on the human rights of migrants in includes some strong criticism, particularly around detention and children’s rights.

The Rapporteur highlights the disecepancies between UKBA policies and the reality for asylum seekers and migrants. For example,the New Asylum Model is said to offer “accelerated decision-making processes and increased contact with asylum-seekers without resorting to detention”, but the Rapporteur found many “cases of children, torture survivors and trafficked women who were detained while their asylum cases were being decided”, as well as “numerous allegations of instances of indefinite periods of detention of asylum-seekers” . Allegations acknowledged as true by UKBA officers.

The Rapporteur found that although the House of Commons stated in a report that 1,000 children in families are detained each year, stakeholders estimate that the figure is actually double that.

The Rapporteur also expresses concern about age-disputed cases. He “notes with dismay that this guidance relies excessively on subjective criteria, having as a consequence the possibility that minors could be considered as adults throughout the application process and detained on this basis.”

Click here to download the full report with recommendations, including that the UK stops detaining children. http://bit.ly/ cKE2uo

48. Detention statistics provided by the Government show that of the 2,460 people detained, 960 had been in detention for less than 29 days; 425 for between 29 days and 2 months; 360 for 2–4 months; 225 for between 4–6 months; 270 for between 6 months and 1 year; and the remaining 215 for longer than 1 year. These figures are not directly comparable with previous figures on length of detention prior to December 2008 because of the use of a revised methodology.

52. In this connection, the Special Rapporteur also heard numerous allegations of instances of indefinite periods of detention of asylum-seekers. This allegation was acknowledged as true by UKBA officers in the last meeting held with the Special Rapporteur on 26 June 2009, when reference was made to the case of Ahmed Daq, a Somali national and failed asylum-seeker with a criminal record, who was detained for over three years with no prospect of deportation and who, by a ruling of the High Court of
Justice, was granted bail under stringent conditions, including tagging, daily reporting to an immigration officer or police station and residence at an address to be identified or agreed by the Secretary of State.

55. The Special Rapporteur remains concerned about the use of detention in immigration control and the process of refugee status determination. In this connection, the House of Commons has stated in a report that nearly 1,000 children in families each year are detained in immigration removal centres.43 Stakeholders estimate that the figure is actually double that.

56. The Special Rapporteur has been informed of the instruction issued by UKBA regarding age-disputed cases of asylum-seekers, whereby “the claimant should be treated as an adult if their physical appearance/demeanour very strongly suggests that they are significantly over 18 years of age” and expresses concern about the lack of recognition of the benefit of the doubt in age-disputed cases. He notes with dismay that this guidance relies excessively on subjective criteria, having as a consequence the possibility that minors could be considered as adults throughout the application process and detained on this basis.
Furthermore “the lack of available information about the range of children involved [in asylum-seeking] raises considerable concern about safeguarding arrangements”.

77. In relation to the protection of children in the context of migration, the Special Rapporteur recommends that the Government:

(a) Ensure the protection of migrant children accompanied by their families from detention and guarantee that migration laws include actual regulations that realize children’s rights and needs in such circumstances;

(b) Take all necessary steps to ensure the proscription of deportation of unaccompanied children and disputed-age cases as a punishment for irregular migration status and accordingly consider repatriation of children only if this is in their best interest, affording them, in any case, all judicial guarantees;

(c) Continue to take measures to bring its legislation into line with the Convention on the Rights of the Child and consider fully implementing the recommendations made by the Committee on the Rights of the Child, including by both ensuring that the independence of all four children’s commissioners is not limited by their mandate and that the posts are established in full compliance with the Paris Principles and considering the establishment of an independent oversight mechanism for assessing reception conditions for unaccompanied children, including those who have to be returned;

(d) Consider mainstreaming into its policies the Guidelines on International Protection: Child Asylum Claims under Articles 1A (2) and 1 (F) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees, adopted by UNHCR on 22 December 2009;

(e) Increase efforts to integrate migrant children and children from a migrant background and their families into early childhood and language command programmes;

(f) Strengthen efforts to raise awareness on child protection measures and welfare services available to separated and unaccompanied children;

(g) Consider regularization and naturalization alternatives for failed unaccompanied asylum-seeking children who have been granted discretionary leave to remain until the age of 17 and a half;

(h) Compile and share with host countries within and outside Europe good practices in addressing the situation of unaccompanied and separated children through a comprehensive welfare system including the rights to health and education.
78. In relation to age-assessment processes in disputed-age cases of allegedly separated children who seek asylum, the Special Rapporteur recommends that the Government:

(a) Elaborate statutory guidance on a holistic and multiagency approach to age assessment to be applied in disputed cases of allegedly separated children who seek asylum; ensure that such children are able to access formal age assessment procedures and, accordingly, take all necessary steps to ensure that appropriate referrals are made;
(b) Provide adequate support to social workers and other officials carrying out age assessment and training on issues such as cultural and religious sensitivity, child protection and post-traumatic treatment;
(c) Recognize the benefit of the doubt in disputed cases of allegedly separated and unaccompanied children who seek asylum and, accordingly, apply the principle in dubio pro infante, recognize that in disputed-age cases the burden of proof is on the Government and accordingly suspend the application of UKBA asylum instruction 2.2 on age assessment, which instructs that “the claimant should be treated as an adult if their physical appearance/demeanour very strongly suggests that they
are significantly over 18 years of age”;
(d) Provide specific guidance and training at ports and screening units for the treatment of disputed-age cases and ensure that age is not assessed in screening units or at ports but by specialized units specifically created for that purpose.

81. In connection with the protection of refused asylum-seekers and migrants in an irregular situation, the Special Rapporteur recommends that the Government:
(a) Follow the several country-specific guidelines issued by UNHCR, in order to avoid returning refused asylum-seekers whose appeals have been exhausted to countries where they may be at high risk of human rights violations;
(b) Address the concerns expressed by the Committee on Economic, Social and Cultural Rights regarding the low level of support and difficult access to health care for rejected asylum-seekers  by fully implementing the recommendations from the joint review carried out by the Department of Health and the Home Office on access to the National Health Service by foreign nationals, and by ensuring that refused asylum-seekers are not left destitute while they remain in the United Kingdom.

85. The Special Rapporteur encourages the Government to establish programmes that promote a human rights-based approach to migration and the protection of the human rights of migrants, regardless of their immigration status, as good practices in
migration governance.

http://www.unhcr.org/refworld/docid/4c0623e92.html