Refugee Children’s Consortium

HOUSE OF COMMONS - COMMITTEE STAGE BRIEFING

Amendment 223 - Welfare of separated and unaccompanied young people

Immigration Bill – November 2015

PROPOSED AMENDMENT

Schedule 6, Page 91, line 7, at end insert -

(*) Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (withholding and withdrawal of support) is amended as follows.

(a) In paragraph 6(1), after “person” insert “who entered the United Kingdom as an adult”

(b) In paragraph 7, after “person” insert “who entered the United Kingdom as an adult”.”

Purpose

This amendment seeks to make sure that all care leavers – including young asylum-seekers and migrants who came to the UK as children – are given the support they need while they are in the UK by amending Schedule 3 of the Nationality, Immigration and Asylum Act 2002 so it does not apply to people who initially came to the UK as children. It will not create an automatic right to support but will make sure that a young person is not discriminated against on the basis of his or her immigration status.

Key messages:

Ø  Schedule 3 of the 2002 Act allows local authorities to withdraw support from care leavers who are ‘appeal rights exhausted’ and classed as ‘unlawfully in the UK’ on the basis of their immigration status, but this is in conflict with care leaving legislation and the role of the corporate parent.

Ø  Local authorities face legal challenges if they stop supporting young people, but steep bills if they continue as costs are not reimbursed by the Home Office. As a result local authority practice varies widely and there is no universal approach.

Ø  Some young people subject to the removal of local authority support under Schedule 3 are forced into destitution while others go missing. Destitution and homelessness has serious implications for young people’s well-being and safety and exposes them to exploitation and abuse.

Ø  Regulations for young people are harsher than for adults receiving local authority support. For adults, support continues until the individual fails to comply with removal directions, whereas for young people, support can be withdrawn if the young person is found to be ‘unlawfully in the UK’ but has not been served with removal directions. This is at odds with the intended purpose of the 2002 Act.

Ø  There has been strong criticism from the Joint Committee on Human Rights and the Office of the Children’s Commissioner about the way Schedule 3 impacts on care leavers. Case law has established local authorities’ on-going duty to accommodate ‘appeal rights exhausted’ young people in their care and not to rely on Home Office support[1].

Ø  The Refugee Children’s Consortium (RCC) firmly believes that children and young people who have been in care should be supported until they leave the country, or receive leave to remain in the UK. The system must protect the best interests of young people who are alone in the UK, whatever their future holds.

Commitment to care leavers

The provisions under Schedule 3 affecting care leavers who are subject to immigration control are inconsistent with government policy on care leavers generally. The Children and Families Minister Edward Timpson has emphasised the importance of the quality and consistency of support provided to care leavers. At the launch of the cross-government strategy on care leavers in 2013 he stated: “We want care leavers to enter adult life with the same opportunities and life chances as their friends. If someone needs a helping hand to get into work, to find a college place or to access the right employment services, it shouldn’t matter which part of government provides it.”[2] The Minister has recently confirmed his continuing commitment to the strategy and to doing more for care leavers including supporting them to have higher aspirations[3]. Conversely, care leavers subject to the Schedule 3 provision are prevented from accessing the full range of services as their peers including continuing in education despite their personal ambitions.

Immigration restrictions make young people destitute

Although the immigration status of a separated or unaccompanied child does not affect their entitlements while they are in care and as care leavers under the Children Act 1989, a young person’s entitlements after 18 will depend on their immigration status. Schedule 3 prevents some categories of migrants from accessing certain types of support including ‘leaving care’ provisions.[4] Case law has made it clear that a young person in this situation should not be moved onto support provided by the Home Office[5] but continue to be supported by the local authority[6]. Support should not be withdrawn if this would breach an individual’s human rights. However, practice amongst local authorities varies widely due to confusion around entitlements and budgetary pressures[7] leaving some care leavers entirely without or with very limited support. RCC members have long been concerned about the forced destitution of former separated asylum-seeking and migrant children when they turn 18. For example, a report in 2012 from The Children’s Society’s found a sharp rise in the number of young people who are experiencing destitution as a result of immigration provisions[8].

Unfairly disadvantaged and unintended policy

Care leavers are disproportionately and unfairly affected by Schedule 3 in comparison with adult asylum seekers. An adult failed asylum seeker who has an identified need (e.g. for community care) and is receiving support from the local authority may be affected by Schedule 3, but only at the point at which s/he has failed to comply with removal directions[9]. A former relevant child is actually disadvantaged and faces having leaving care support terminated at an earlier stage than this. Instead, under the current system, as a result of being granted a form of leave before 18 by the Home Office rather than a more secure status like refugee or humanitarian protection, the former relevant child becomes affected at an earlier stage than an adult with an identified need for services. It is an illogical and unfair consequence of Schedule 3 that former relevant children have support withdrawn earlier than adults. The wording of the Home Office’s original guidance to local authorities on Schedule 3 indicates that this was not the intended outcome of the Act:

Unaccompanied Asylum Seeking Children are normally granted exceptional leave until the age of 18. If, upon reaching 18 the individual applies for asylum, NASS will normally provide support (depending on the date the person applied for asylum). If such an individual becomes a failed asylum seeker then they should be treated in the same way as any other asylum seeker as regards asylum support (i.e. asylum support will be withdrawn). In addition if they become a failed asylum seeker and fail to comply with removal directions then any assistance being provided by a local authority under the provisions of the Children Act 1989 must be withdrawn. Such individuals can leave the UK either through removal by the Immigration Service or through a voluntary departure with VARP.[10]

Schedule 3 is clearly being applied in a way which was not intended by Parliament when the Act was passed, and former relevant children are suffering as a result. This amendment provides an opportunity to make sure that this does not happen in the future.

Consequences of homelessness and destitution

Destitution has severe consequences for young people’s safety. These vulnerable young people are forced to take extreme measures to survive, including being sexually exploited, working illegally or forced into criminality. It also has an impact on a young person’s physical health – for example by being malnourished, unable travel to see their GP or unable get warm clothing in the winter – as well as adverse effects on their often already fragile mental state. Various systematic reviews estimate that 19% to 54% of separated migrant children suffer from symptoms of post-traumatic stress disorder compared to 0.4%-10% of other children in the UK[11]. Being able to access education and safe housing, two key protective factors for separated young people, also becomes more difficult when young people are destitute.

Case study: Matthew – a young person from Iran

Matthew is a torture survivor who came to the UK from Iran when he was aged 17. He was refused asylum and wanted to appeal but his solicitor did not want to support his appeal so he went to court unrepresented. His appeal was rejected and children’s services stopped his support. He was made homeless for one year. He was seeing a psychologist while being supported by children’s services but once the support was cut off, the counselling stopped as well. While homeless Matthew’s health deteriorated. He couldn’t sleep at night. His hair was falling out. He experienced a lot of violence when he was sleeping on the streets. Sometimes he was able to work for his friend in exchange for accommodation. He was desperate to stay in the UK because he feared for his life if he were to return to Iran. With help from The Children’s Society he was able to get a new solicitor and put in a fresh claim. Since being destitute, he has been recognised as in need of protection and granted leave to remain in the UK.

Barriers to return

The majority of unaccompanied children in the UK are seeking protection from violence, abuse and persecution from places like Afghanistan, Eritrea, Syria, Sudan and Iran. Some of these young people experience destitution because they are discharged from local authority support, after being refused asylum and exhausting their rights to appeal, often despite significant barriers to their return such as documentation issues[12] or continuing protection needs. Research by the Office of the Children’s Commissioner on this issue highlighted that the majority of these young people are unlikely to be returned given the barriers to removal they face[13]. For example, in one local authority where the research was conducted, there were 102 care leavers whose appeal rights had been exhausted yet of those, the Home Office had estimated that there was no imminent prospect of removal in 57 cases (56%). For many of the young people, the fear of returning to their country of origin (whether real or perceived) is a serious factor to consider. For example, the young people in the OCC study highlighted videos posted on YouTube featuring Taliban executions of young people in Afghanistan. For the young people involved in the research, the reality of becoming ‘appeal rights exhausted’ had resulted in a pervasive sense of fear, anxiety and depression, and for some contemplation of suicide.

A failed policy

There is a growing body of evidence demonstrating that forced destitution is an ineffective policy.[14] There is little, if any, empirical evidence demonstrating that access to support plays a determinant role in attracting migrants to the UK,[15] or that “we can encourage people to leave by being nasty”.[16] The experience of Refugee Children’s Consortium members’ and government statistics demonstrate that withdrawing young people’s support results in destitution but not their departure from the UK. In its inquiry into child protection in 2012, the Education Select Committee stated that “it would be outrageous if destitution were to be used as a weapon against children because of their immigration status”.[17] Similar concerns have been raised by the Office of the Children’s Commissioner for England[18] and the Joint Committee on Human Rights[19] who have made specific recommendations for legislative change to Schedule 3 to protect care leavers and reforms to the funding regime for local authorities supporting migrant care leavers. The Government has so far rejected these reforms[20], however, we believe this issue needs to be resolved urgently with the welfare of young people at the heart of this decision.

For more information: Ilona Pinter, Policy Adviser at The Children’s Society on 07713 878 207 / .

Members of the RCC are: Action for Children, Asylum Aid, Asylum Welcome, Association of Visitors to Immigration Detainees (AVID), Bail for Immigration Detainees, The British Association of Social Workers (BASW), Brighter Futures, CARAS, Catch22, Children and Families Across Borders (CFAB), Coram Children's Legal Centre, Coram Voice, Coram BAAF, Children England, Child Poverty Action Group (CPAG), Children's Rights Alliance for England, The Children's Society, Doctors of the World UK, DOST, Eaves, ECPAT UK, Family Rights Group, The Fostering Network, Freedom from Torture, Gatwick Detainees, Kent Refugee Action Network, Immigration Law Practitioners' Association (ILPA), Islington Law Centre, JCORE, Law Centres Network, Love to Learn, Medical Justice, National Children’s Bureau, NSPCC, OMID International, Project 17, The Prince’s Trust, RAMFEL, Refugee Action, Refugee Council, Refugee Support Network, Royal College of Paediatrics and Child Health, Scottish Refugee Council, Student Action for Refugees (STAR), UNICEF UK, The Who Cares? Trust, and Welsh Refugee Council. Barnardo’s, British Red Cross, Office of the Children’s Commissioner (England) & UNHCR all have observer status. http://www.refugeechildrensconsortium.org.uk

[1] (SO) vs London Borough of Barking and Dagenham

[2] https://www.gov.uk/government/news/new-cross-government-support-strategy-for-care-leavers

[3] Edward Timpson’s speech ‘Our mission to give vulnerable children a better start in life’ July 2015: https://www.gov.uk/government/speeches/our-mission-to-give-vulnerable-children-a-better-start-in-life

[4] Section 54 and Schedule 3

[5] Under Section 4 of the Immigration and Asylum Act 1999,

[6]R(SO)vLondon Borough ofBarkingDagenham[2010] EWCA Civ 1101

[7] Coram Children’s Legal Centre: Navigating the system: Access to advice for young refugees and migrants, 2012

[8] The Children’s Society (2012) ‘I don’t feel human: Experiences of destitution among young refugees and migrants’

[9] The case of AW v Croydon established the entitlement of adult refused asylum seekers with care needs to support under the National Assistance Act 1948.

[10] Home Office, 2002, Nationality, Immigration and Asylum Act 2002 Section 54 and Schedule 3 and the Withholding and Withdrawal of Support – Guidance to Local Authorities and Housing Authorities

[11] Bronstein & Montgomery (2011); Fazel et al., (2012); Huemer et al. (2009); National Collaborating Centre for Mental Health, (2005)

[12] It can be extremely difficult to forcibly remove people to countries where there are uncooperative governments, difficulties in obtaining travel documents, and/or logistical and practical transportation difficulties. For example, in March 2012, Damian Green stated that “as there is no Iranian diplomatic mission in the United Kingdom, there are limits to what support [UKBA] can provide where they do not hold a valid passport to return”, HC Deb, 12March 2012, c9W. For details on barriers to return see Still Human Still Here (2010) At the end of the line: Restoring the integrity of the UK’s asylum system.