Human Rights of unaccompanied migrant children and young people in the UK

House of Lords, House of Commons  Р Joint Committee on Human Rights

Unaccompanied migrant children are those who arrive in the United Kingdom separated from their parents and other relatives, and who are not being cared for by an adult with a legal or customary responsibility for doing so. In 2012 around 1,200 such children sought asylum in the UK, and around 2,150 unaccompanied migrant children were being cared for by local authorities.

These children are entitled to protection under domestic legislation and international agreements, the most universally accepted of which is the UN Convention on the Rights of the Child (UNCRC). Providing protection and support effectively is crucial: the asylum and immigration process can be complex, and the stress it can cause can be particularly acute for
children. In this Report we examine how effectively support is provided at present, and how it could be provided more effectively in the future.Bringing best interests to the fore

The best interests of unaccompanied migrant children must be at the heart of all asylum and immigration processes affecting them. However we find that immigration concerns are too often given priority instead. We call for change to shift the emphasis accordingly.

Leadership from the Government 
We welcome the Government’s pledge to give greater consideration to the UNCRC, but call for more concerted efforts to put the best interests of children and young people at the heart of policymaking. We urge the Government to ensure that all those working with unaccompanied migrant children are given clear guidance about the importance of these
best interests, and that it evaluate whether more formal processes are required to properly determine best interests in cases involving unaccompanied migrant children. We also call for the establishment of a clear strategy for coherent joint working within the Government, and for the UNCRC to be used as a yardstick by which to judge departmental performance.

We urge the Government to examine whether there should be a greater role for the Department for Education (DfE), as the department responsible for safeguarding children and young people, in overseeing the support of unaccompanied migrant children. We recommend in that regard that the DfE should be given responsibility for administering grant funding to local authorities for the care of unaccompanied migrant children, as a clear signal that best interests should be given priority in its distribution.

The asylum and immigration process
Best interests should also be a focus throughout the asylum and immigration process.
However, we find that there is too little emphasis on the needs of children and of the need to tailor processes to their age and background. This manifests itself when screening children at the outset and when gathering information about their asylum claims, and we call on the Government to make clear to staff the importance of supporting children throughout their time in the UK. More broadly, we call on the Government to develop and deliver a training programme designed to improve awareness and understanding among safeguarding and 4 The Human Rights of unaccompanied migrant children and young people in the UK immigration staff of the UNCRC, particularly with respect to best interests.

It is also important to identify unaccompanied migrant children and to provide support¬†appropriate to their age and situation. We find that there is an unwelcome ‚Äúculture of disbelief‚ÄĚ in assessing the age of those claiming to be unaccompanied migrant children, with too little multi-agency input in the process of doing so. We consider improvements in this area to be of paramount concern. We urge the Government to produce robust data on the
number of cases in which age is disputed to inform public debate. We also recommend the development of clear statutory guidelines which make clear that children should more often be given the benefit of the doubt in a more collaborative age assessment process, and that xray examinations should play no part in assessing age.

Some of those children who arrive in the UK have been trafficked, and those children must be quickly identified and supported. We are concerned by evidence that the framework for doing so, the National Referral Mechanism (NRM), is identifying too few cases of trafficking and is failing prevent children being brought within the criminal justice system as
perpetrators rather than victims. The framework should be reviewed independently, with robust statistics produced on its operation to inform public scrutiny. We also call for sole responsibility for the NRM to be transferred to the UK Human Trafficking Centre, to give a greater perception of its independence from the immigration authorities. Finally, we
conclude that there must be more awareness of the NRM, driven by targeted materials and training for those in the safeguarding workforce, the police and the Crown Prosecution Service.

Making decisions about the futures of unaccompanied migrant children 
We must also make sure that when decisions are made about the future of unaccompanied migrant children, it is with their best interests in mind. We are not convinced that this is the case at present. Discretionary leave to remain is used too readily at the expense of properly considering other options, such as asylum, which hinders access to further education and to the labour market in adulthood. The Government should ensure that all unaccompanied migrant children have asylum claims evaluated fully, have decisions made about their future on robust evidence as early as possible, and are able to appeal decisions that are made regardless of their leave period. We urge the Government to establish a pilot tribunal that can take on decision-making in a small number of cases, in order to evaluate whether the
decision-making framework requires fundamental reform.

There is also an insufficient focus on welfare when making decisions about whether to return children to their country of origin or third countries. The Government should affirm that it will not participate in any programme that would return children to countries such as Afghanistan or Iraq where there are ongoing conflict or humanitarian concerns.

Supporting unaccompanied migrant children 
Support structures
In keeping best interests in mind, we must provide a strong support network to help children navigate the asylum and immigration processes. Local authorities play an essential and invaluable role in providing that framework, but support is too inconsistent across the country. This is especially so during the transition to adulthood, where resource constraints, The Human Rights of unaccompanied migrant children and young people in the UK uncertainties about the applicable legal framework and a lack of specialist expertise all hinder the support services provided.

The Government should take clear action to remedy these issues. It should build up a clear picture of where good practice is located, and use that knowledge to develop centres of excellence that can spread that practice more widely. It should also ensure that the grant funding it provides to local authorities to support unaccompanied migrant children covers the full costs of their care. Finally, it should ensure that there is a clear and well-understood legal framework in place to provide support for children during the transition into adulthood, even where their appeal rights are exhausted.
Such support includes providing for children’s educational needs. However, in our evidence we saw concerning accounts of the educational provision on offer, and dissatisfaction that children were being hindered in their access to higher education by funding arrangements.

The Government must affirm its commitment to ensure equal access to education, regardless of immigration status.

Specialist advice and advocacy 
Unaccompanied migrant children also require specialist support, including legal advice. However, we are concerned by evidence that it can be difficult for children to get access to good quality legal advice, particularly outside London, and are concerned that changes to the legal aid regime could exacerbate the situation. We urge the Government to conduct an immediate assessment of legally-aided asylum and immigration legal services in England and Wales, to identify and remedy issues in their provision, and to give serious consideration to the cost-benefit case of bringing all cases involving unaccompanied migrant children into the scope of legal aid.

There may also be a role for other individuals to advocate the best interests of unaccompanied migrant children. We are persuaded that providing children with a guardian could support children more effectively in navigating asylum, immigration and support structures and help them to have to have their voices heard. We therefore support establishing pilot programmes in England and Wales to examine the case for guardianship in more depth.


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 The Human Rights of unaccompanied migrant children and young people in the UK 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 as 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)
‚ÄĒ 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;
‚ÄĒ 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;
‚ÄĒ 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;
‚ÄĒ 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 decisionmaking 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 postqualifying 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 ‚Äúcompetent authority‚ÄĚ 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 antitrafficking 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 ‚Äúfirst responder‚ÄĚ 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) ‚Äď (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)