Inquiry Into the Human Rights of Unaccompanied Migrant Children and Young People in the UK

Inquiry into the human rights of unaccompanied migrant children and young people in the UK

Joint Committee on Human Rights

October 2012
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About Barnardo’s

Barnardo’s is the UK’s largest children’s charity, with 800 services supporting over 200,000 children, young people and families every year. Our projects include counselling for children who have experienced sexual exploitation, fostering and adoption services, vocational training, disability inclusion groups and services for young carers. Our purpose is to help the UK's most vulnerable children and young people transform their lives and fulfil their potential.

This response is based on the views of our practitioners and experience of delivering services to unaccompanied migrant children and young people:

Barnardo’s has three trafficking services in London, Hampshire and Manchester. As well as direct work with children, these provide awareness raising and training regarding child trafficking to local agencies including social care, health, police and immigration authorities, education and accommodation providers.
In Manchester, we provide both individual support to children who have experienced or who are at risk from trafficking, and health care support to asylum-seeking children including HIV care.
We run a specialist fostering service in the South East that provides family placements for unaccompanied asylum seeking children and supports them through the asylum process.
Our 16+ service runs a residential unit for looked after and accommodated unaccompanied asylum seeking young people in Glasgow.
We provide a safe accommodation project for sexually exploited and trafficked children offering specialist, therapeutic foster care.

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3.Executive summary

The Department for Education should have overall responsibility for unaccompanied migrant children.
The Department for Education should create a national lead to support the safeguarding of unaccompanied migrant children, and encourage local authorities in places of high need to establish specialist child trafficking leads and specialist resources.
Training is needed amongst those who work with unaccompanied migrant children in order to ensure that their specific needs and vulnerabilities are taken into account.
All interpreters working in the immigration system should be trained and accredited by the Home Office.
The UKBA should put measures in place to tackle the culture of disbelief surrounding unaccompanied migrant children’s immigration cases.
The UKBA should also ensure that their own guidance is carried out in practice, particularly around applying the benefit of the doubt more generously when dealing with children.
Unaccompanied migrant children seeking asylum should always be seen as children first and asylum seekers second.
As the current decision-making process around asylum claims does not represent a durable status for children, this should be provided for all. This may include granting indefinite leave to remain to all unaccompanied migrant children, including trafficked children.
It is vital that all children who are unable to return to their country of origin are granted indefinite leave to remain as the current system leaves them in a completely unacceptable position.
The Government should ensure that unaccompanied migrant children have access to free legal representation for all cases, including the most complex.
A system of guardianship should be established to provide independent, quality support.
All unaccompanied migrant children and young people who have been in the care of children’s services should be supported up to and after the age of 18.
To ensure that all unaccompanied migrant children have adequate post-18 support, local authorities should have specialist unaccompanied minors or child trafficking teams. It would be especially important to establish these in authorities near ports or in those which have a significant number of unaccompanied migrant children.
The training of social workers who are involved in age assessments must be improved.
The culture of disbelief around unaccompanied migrant children’s presented ages must be challenged and tackled.
There should be an independent, multi-agency panel approach to determining age assessments.
The practice of placing unaccompanied migrant children and young people into unsafe accommodation must stop.
The pilot safe accommodation scheme, run by the Department for Education and Barnardo’s totrain more foster carers to support trafficked children, should be rolled out nationally with support to help local authorities engage effectively with the scheme.

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4. Should one department in Government have overall responsibility for unaccompanied migrant children and young people in order to ensure that their rights are best promoted and protected? If so, which one?

4.1Barnardo’s is concerned that whilst the Department for Education determines policy related to safeguarding, children’s rights and children in care, the Home Office is the lead agency for migrant children. Subsequently, the issues surrounding unaccompanied migrant children are seen from an immigration perspective, related to controlling the movement of migrants, rather than a children’s rights perspective, related to promoting the welfare of children. Establishing the Department for Education as the lead agency for migrant children would both ensure that their welfare is better promoted and send a powerful message that the safeguarding of vulnerable unaccompanied migrant children takes precedence over immigration concerns.

4.2The Department for Education should also create a national lead to provide strategic steer and support the imbedding of unaccompanied migrant children as a national safeguarding issue. This should support the establishment of a child trafficking lead and specialist resources in local authorities of high need.

4.3 Recommendations

The Department for Education should have overall responsibility for unaccompanied migrant children.
The Department for Education should create a national lead to support the safeguarding of unaccompanied migrant children, and encourage local authorities in places of high need to establish specialist child trafficking leads and specialist resources.

5. Is there sufficient awareness and relevant training on children's rights and the UNCRC for those in government, central and local, and other bodies, public or otherwise, who deal with separated migrant children and young people?

5.1Barnardo’s experience strongly suggests that there is insufficient awareness and training around children’s rights and the UNCRC. Through accompanying asylum-seeking children to children in need assessments carried out by local authorities, our practitioners are aware that the guidelines around interviewing children are not always adhered to in practice. For example, in one case an interview was not stopped after the child had become clearly distressed. In another, a child’s request to stop the interview on account of being thirsty was refused and was only accepted after the accompanying practitioner spoke out on their behalf. These examples show that some interview practices may go against safeguarding duties to promote the welfare of children. It is particularly concerning that these practices occurred when children were accompanied by our practitioners, as it calls into question whether this happens more regularly when children do not have someone to speak out for them.

Case study – immigration interview
Our practitioners work with unaccompanied children and young people who attend immigration interviews with officials from the UKBA. They are aware that whilst some have training on how to conduct interviews and appropriate safeguarding procedures, this is not always the case with every official, leading to negative consequences for the child.
A young woman had been trafficked into the UK and been age assessed by the local authority to be under the age of 18. Despite this, she was not afforded the appropriate level of care for a child in an immigration interview attended by one of our practitioners. As well as a harsh tone throughout, the immigration official adopted a stance of disbelief and aggressive questioning. Although the young woman had subsequently become frightened and begun to laugh nervously, the official did not adapt their tone and took her laughter to be a sign of facetiousness. As both our practitioner and the solicitor had become concerned, they requested regular breaks in the interview. The appropriate practices around dealing with a child in an interview had not been followed in this case.

5.2There is also an issue around the use of interpreters who are crucial in relating the complexities of an asylum case to both the child or young person and officials. We know that interpreters often have little knowledge of the asylum process or experience of working with vulnerable children and young people. Mistakes in interpreting can have a detrimental impact both on the case and the child or young person’s confidence in the process. In addition safeguarding issues can arise from the use of interpreters who have not been formally checked and approved in cases of child trafficking.

Case study – interpreters
Our practitioners have had direct contact with interpreters in both UKBA and local authority interviews. In one case, two children had been trafficked together into the UK and were being looked after in separate areas of the country to minimise the risk of traffickers locating them together. An interpreter had passed on confidential information to one child about the whereabouts of the other, thereby threatening the safety of both if either were to come back into contact with the traffickers. In another service, our practitioners became aware that an interpreter had an inappropriate relationship with the child they were assisting and was purchasing gifts for them. The child was subsequently given a different interpreter.

5.3 Recommendations

Training is needed amongst those who work with unaccompanied migrant children in order to ensure that their specific needs and vulnerabilities are taken into account.
All interpreters working in the immigration system should be trained and accredited by the Home Office.

6. How are unaccompanied migrant children’s best interests being considered and upheld in immigration decisions made about the leave to remain and enter?

6.1Barnardo’s is concerned that unaccompanied migrant children’s best interests are not being considered and upheld in immigration decisions. Although UKBA guidance states that the benefit of the doubt should be applied more generously when dealing with a child, our practitioners report that the opposite is often the case, with a pervasive culture of disbelief apparent in the UKBA assessment process. If a child’s experiences are wrongly disbelieved, the basis from which immigration decisions are made is flawed, meaning that their best interests cannot be adequately considered.

6.2We are also concerned that children’s best interests are not being given enough weight in the immigration decision making process. Whilst the UKBA controls immigration, decisions about leave to remain and enter should not be based solely upon immigration issues as the child’s best interests must also be considered. In fact, there is guidance stating that the course favouring the child’s best interests should be followed unless there is contravening reasons of considerable force against them. Whilst there will be occasions when it may be in a child’s interest to return to their country of origin, this will not be the case in many situations. There therefore needs to be a thorough examination of child protection concerns for every child to ensure that their best interests are being met.

6.3 Recommendations

The UKBA should put measures in place to tackle the culture of disbelief surrounding unaccompanied migrant children’s immigration cases.
The UKBA should also ensure that their own guidance is carried out in practice, particularly around applying the benefit of the doubt more generously when dealing with children.
Unaccompanied migrant children seeking asylum should always be seen as children first and asylum seekers second.

7. Is the current decision-making process on children's asylum claims satisfactory and does it represent the finding of a 'durable solution' for each child in the UK, in accordance with the recommendations of the UN Committee on the Rights of the Child?

7.1We are aware that few of the unaccompanied migrant children we work with are granted a durable status to remain in the UK. Instead, many are refused asylum and given discretionary leave to remain for three years or until they are 17 and a half years old. This does not represent a ‘durable solution’ as children are left with a temporary resolution and the knowledge that their residence is not permanent. Our practitioners reflect that this can leave young people feeling anxious and de-motivated as they approach 18, when they may lose their leave to remain and many of their rights, as well as potentially being required to return to their country of origin despite outstanding protection concerns. We also know that children who are given discretionary leave to remain are likely to have integrated into the UK having spent a significant part of their lives here and believe that this should be more fully considered in immigration decisions.

7.2Trafficked children are particularly vulnerable in the current system. As their discretionary leave to remain ends, many will apply for asylum at the age of 18. During this process, they may become frightened that they will return to their country of origin, and may subsequently return to traffickers. The prospect of being refused asylum at the age of 18 can therefore have particularly negative consequences for trafficked children. Taking all these factors into account, we believe that the current system does not take unaccompanied migrant children’s best interests into account or sufficiently promote their welfare.

Case study – ‘durable solution’
A young woman arrived into the UK from South East Asia unaccompanied aged 15 years of age. The social worker completing the age assessment assessed her as being 16 years old. She was given discretionary leave to remain as an unaccompanied child seeking asylum in the UK but her initial asylum claim was refused. Her discretionary leave expired when she reached 17 and a half years of age. Her application for an extension to her leave and a subsequent asylum appeal was rejected. She subsequently had no access to public funds and was forced to leave her accommodation. She has now had a Human Rights Assessment by social services and given accommodation and a subsistence allowance of £35 a week.
(Due to the legally sensitive nature of this information, this is a typical case study based on our practitioners’ experiences).
Case study – a trafficked child
Our practitioners work directly with trafficked children and have first-hand experience of the difficulties they go through upon turning 18. In one case, a child had been trafficked into the UK and been given discretionary leave to remain. As this ended when he turned 17 and a half, he applied for asylum. He became frightened during the decision-making process that his asylum claim would be rejected and that he would be returned to his country of origin where he had been persecuted. Whilst our practitioners re-assured him that he could appeal even his claim was rejected, he had been offered a job by his traffickers and been told to leave his children’s home. A few days later, he was reported missing. It seemed that the fear of having his claim rejected and having to return to his country of origin had led him to return to his traffickers. Our practitioners report that this type of scenario has occurred in a number of cases, and that traffickers may attempt to re-engage with children at this stage as they are aware of the heightened anxiety they often feel when their discretionary leave to remain ends.

7.3There is the concerning issue of unaccompanied migrant children who cannot be returned to their country of origin after their discretionary leave to remain ends. This can be due to a number of reasons, such as the host country refusing to take back asylum seekers, a lack of papers or identification, or because the child is stateless. Working directly with children who have faced this scenario in the past, our practitioners are aware of the shocking position that these young people are placed in. Without the right to remain in the UK, they are often left without the basic means to support themselves, such as the right to work or access benefits and accommodation, and are left destitute. Some are given a subsistence allowance following a Human Rights Assessment but the level of this support remains woeful and, without statutory guidance on the assessments, its application remains varied.

7.4 Recommendations

As the current decision-making process around asylum claims does not represent a durable status for children, this should be provided for all. This may include granting indefinite leave to remain to all unaccompanied migrant children, including trafficked children.
It is vital that all children who are unable to return to their country of origin are granted indefinite leave to remain as the current system leaves them in a completely unacceptable position.

8. Are unaccompanied children able to access the legal advice and representation necessary to ensure that they are able to have their voice heard in any judicial and administrative proceedings affecting them, and that their rights are upheld, in accordance with international standards? Should there be a system of guardians for unaccompanied and separated migrant children to ensure that their interests are represented?