SCOPE OF THIS CHAPTER
This document provides guidance to staff working in the Children Social Care who are working with unaccompanied asylum seeking children in Bexley. The policy is applicable to all unaccompanied asylum seeking children up to the age of 18 years. This document sets out a process for best practice to assist unaccompanied asylum seeking children to obtain services.
This chapter fully replaced the previous chapter in April 2017 and is a comprehensive guide for staff working with unaccompanied asylum seeking children in Bexley. The chapter reflects that throughout their experience, asylum seekers are ‘children first’ and reflects the key information with regard to age-assessment and the issue of Section 17 and Section 20 support to the individual child. The chapter also details the legal issues around application for asylum status and transition and the status for young people nearing 18 years.
- Policy Statement
- Legal Context
- Procedure for Unaccompanied Asylum Seeking Children Arrivals in Bexley
- Age Assessment
- Age Disputes
- Placements and Allocated Workers
- Placement Options for Unaccompanied Asylum Seeking Children
- Assessment, Planning and Review
- Transition at 18 Years
- Other Issues
The changing pattern of wars, conflicts and persecution tends to dictate where asylum seekers originate. For each of them there is the reason why they started their journey and their experiences on the way. It may be social care staff are amongst the first people they meet on arrival. For many their experiences prior and up to leaving their homes will have been traumatic, complicated and they may have experienced the loss of significant family members and community, and for many their experience of the journey will also have been traumatic.
Asylum seekers may arrive in Bexley in several ways and this will dictate where they are in the immigration process. They may be new in-country applicants who have found their way to Bexley and are not known to the Immigration compliance and enforcement teams of the Home Office. In other words they have not been identified at a point of entry. An interview with the Immigration compliance and enforcement (ICE) is the first step. For unaccompanied asylum seeking children this is important as the ICE will undertake an age assessment where appropriate, although the Local Authority is responsible for making its own assessment of age (see Section 6, Age Assessment). The Local Authority where an unaccompanied asylum seeking children first arrives is responsible for them under the Children Act 1989.Unaccompanied minors should make an application for leave to remain in the UK. It is important to bear in mind that their status may change on the young person’s eighteenth birthday and to ensure they have active legal representation.
2. Policy Statement
Principles and Values
The key principles and values underpinning practice in relation to unaccompanied asylum seeking children and young people from abroad, or those accompanied by someone who does not hold parental responsibility, are:
- Children / young people from abroad are children first - this can often be forgotten in the face of legal and cultural complexities;
- Children / young people arriving from abroad who are unaccompanied or accompanied by someone who is not their parent should be assumed to be Children in Need unless assessment indicates that this is not the case;
- Assessment of need should include a separate discussion with the child or young person in a setting where, as far as possible, s/he feels able to talk freely, aided by the use of an appropriate interpreter, who must be used where needed;
- Assessing the needs of these children and young people is only possible if their legal status, background experiences and culture are understood, including the culture shock of arrival in this country;
- An avoidance of ‘interrogating’ the child /young person;
- Safeguarding and promoting the welfare of these children / young people must remain paramount for all agencies in their dealings with this group;
- The term ‘Child’ in this document describes a person under 18 years of age;
- We will ensure that in all our work with unaccompanied asylum seeking children we will aim to meet all their cultural, ethnic and religious needs.
It is the policy of Bexley Children and Families Department that irrespective of any other label they may be assigned that these are children first and foremost.
Therefore all unaccompanied children and young people must receive a full assessment in line with the Department of Health’s National Framework for Assessment of Children in Need and their Families. (See also Assessments Procedure).
When carrying out an age assessment and having concluded that the person is a child, we have a duty to accommodate under Section 20 of the Children Act 1989. Unaccompanied children and young people are an extremely vulnerable group and as such should be given the maximum provision of care and support under the Children as required.
Exceptions to the provision of support under Section 20 could arise where older asylum seeking young people may refuse to be ‘Looked After’, but because of their immigration status, the Children Act 1989 provides their only lawful means of support in this country. The Local Authority after taking account of the child’s wishes under Section 20(6) might judge that the young person is competent to look after him or herself. In these cases Section 17 may be used for support including accommodation without making the young person ‘Looked After’. It is vital however that the young person has been assessed as understanding the full implications of being supported under Section 17 rather than Section 20.
The majority of unaccompanied asylum seeking children and young people will then be entitled to leaving care services under the Children (Leaving Care) Act 2000, to ensure that:
- Young people do not leave care until they are ready;
- They receive more effective support once they have left.
Young people are entitled to this support up to the age of 21 as is appropriate if there is a staying put (see Staying Put Procedure) arrangement or the young person is pursuing a programme of education or training, as long as they were previously supported under Section 20 of the Children Act 1989 for at least 13 weeks subsequent to their 14th birthday and either continue to be ‘looked after’ up to age 18 or have been ‘looked after’ at some time while 16 or 17. They are known as ‘Former Relevant children’. If the Former Relevant child’s Pathway Plan sets out a programme of education or training which extends beyond his twenty-first birthday, then the duties continue until they cease education or training. Local Authority support will continue for as long as the young person has a right to public services. For those young people who are refused asylum, this right to public services may end after they reach 18 years. See section relating to transitions post 18.Young people who arrive within 13 weeks of their 18th birthday will not qualify for full leaving care services even if they have been provided with Section 20 or 23 support under the Children Act 1989 for the weeks leading up to their 18th birthday, as they have not been ‘looked after’ for 13 weeks or more. They are known as ‘qualifying children’ and although they are not entitled to the main leaving care entitlements, they are entitled to advice, assistance and befriending.
The term ‘asylum-seeker’ is used to describe a person who has made a claim for asylum within the meaning of s16(3) Nationality Immigration Asylum Act (NIAA) 2002 and is awaiting a decision from the Home Office.
Unaccompanied Asylum Seeking Children
Unaccompanied Asylum Seeking Children are children who enter the country and apply for asylum and meet the following criteria:
- Is, or (if there is no proof) appears to be, under eighteen;
- Is applying for asylum in his or her own right;
- Has no adult relative or guardian in this country.
Or those young people who enter the UK accompanied but become unaccompanied during their stay in the UK and subsequently claim Asylum in their own right.
Being unaccompanied is not necessarily a permanent status and may change, particularly if the child has family members in the UK.
Accompanied children may have travelled either legitimately or illegitimately with their parents. Others may be brought in by adults either purporting to be their parents or stating that they have the parents’ permission to bring the child. There are many legitimate reasons for children being brought to the UK, such as economic migration with their family, education, re-unification with family or fleeing a war-torn county.
The United Nations protocol to Prevent, Suppress and Punish Trafficking in Persons (the Trafficking Protocol 1) defines trafficking as:
“The recruitment, transportation, transport, harbouring or receipt of persons, by means of the use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purposes of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitutes of others or other forms of sexual exploitations, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”
Child trafficking is defined as:
“The act of recruitment, transportation, transfer, harbouring or receipt of a child (defined as under 18) for the purpose of exploitation either within or outside the country”
Unlike trafficking in adults, there is no requirement that the child have been deceived or coerced by the trafficker: a child’s ‘consent’ to go with a trafficker is not recognised in law.
The vast majority of irregular migrants coming to the UK are smuggled rather than trafficked. People smugglers may profit by transporting irregular migrants for money, but do not attempt to exploit migrants once they reach their destination country. In sharp contrast, traffickers profit through exploitation of their victims, controlling them by:
- Threatening or using violence against the victim or their family;
- Debt bondage (a form of slavery where people are forced to work for little or no money in order to pay back debts, in this case debts ‘owed’ to their traffickers);
- Using threats relating to the victims immigration status (trafficking victims may be terrified of the Immigration Service and of deportation);
- Exploiting emotional attachments, such as ‘boyfriends’ trafficking women for the purposes of sexual exploitation;
- Exploiting the victims vulnerability and lack of alternative options.
Some children may have been trafficked and brought into the country by their facilitator, but then claim asylum as unaccompanied children. This may happen after coercion by their facilitator and by doing so they are legally granted permission to reside in the UK entitling them to welfare benefits.
Some groups of children will avoid contact with the authorities as instructed by their traffickers. For example, it is well documented that some children ‘disappear’ into their ethnic communities once they arrive in the UK. It is also believed that some traffickers insist that the child applies for asylum as this gives the child legitimate right of temporary ‘leave to remain’ in the UK.
- Crime Fighters UK - Toolkits;
- NSPCC Child Trafficking Advice Centre (CTAC);
- Human Trafficking (UNODC Website); and
- Victims of Modern Slavery Guidance (Home Office, GOV.UK).
Refugee Children are children and young people less than 18 years within families who are not British citizens but have leave to remain in this country. They may previously have been asylum seekers and been granted Refugee status, or they may have been resettled in this country or any other EU country via UNRWA (United Nations Relief and Works Agency).
4. Legal Context
Related Legislation and Guidance
The law around asylum and immigration has grown and developed over time, the chief references for those working in Children’s Social Care Service is the Children Act 1989 and the Children Act 2004.
In addition relevant legislation and Guidance is:
- The Human Rights Act 1998 (Equality and Humans Rights Commission website);
- Children (Leaving Care) Act 2000;
- Framework for the Assessment of Children in Need and their Families, DoH 2000;
- Local Authority Circular (2003) Guidance and Ringing the Changes: The impact of guidance on the use of Sections 17 and 20 of the Children Act 1989 to support unaccompanied asylum seeking children (Refugee Council, January 2005);
- The United Nations Convention on the Status or Refugees (UNHCR) of 1951, amended by the 1967 Protocol;
- UNHCR Refugee Children: Guidance of protection and care, Geneva 1994;
- Immigration and Nationality Policy for Asylum Seekers;
- A myriad of legislation dealing with Immigration and Asylum rules and process - Immigration Act 1971, (and the Immigration Rules published under this and updated and amended) Immigration and Asylum Appeals Act 1993, Asylum and Immigration Act 1996, Immigration and Asylum Act 1999, the Nationality Immigration and Asylum Act 2002 and Asylum and Immigration (treatment of Claimants etc) Act 2004;
- DfE, Children Act 1989: Volume 2: care planning, placement and case review Regulations and Guidance;
- Care of Unaccompanied and Trafficked Children: Statutory Guidance for Local Authorities on the Care of Unaccompanied Asylum Seeking and Trafficked Child (2014);
- Vulnerable Persons Relocation Scheme;
- Immigration Act 2016.
Further to the humanitarian crisis of unaccompanied children fleeing conflict in their home Countries, the Immigration Act 2016 provides for arrangements being made to relocate to the United Kingdom and to support a specified number of unaccompanied refugee children from other countries in Europe. The number of such children will be determined by the Government in consultation with local authorities. The relocation of children in this way will be in addition to the resettlement of children under the Vulnerable Persons Relocation Scheme.
Unaccompanied asylum seeking children are entitled to care and protection under the provisions of the Children Acts 1989 & 2004 and where appropriate the Children (Leaving Care) Act 2000. Whilst in the care of Bexley priority will be given to treating young people as children first and asylum seekers second.
The Children Act 1989 Section 20
This requires Local Authorities to provide accommodation for children in need within their area whose assessed needs require this intervention. If a child is accommodated under Section 20 he/she becomes a ‘Looked after Child’.
The Children Act 1989 Section 17
This places a duty upon Local Authorities to ‘safeguard and promote the welfare of children within their area where their welfare would be prejudiced. If a child insists that they want to be given a service under Section 17 then consideration should be given to accommodating them under Section 20 in line with the Hillingdon judgement of August 2003, unless they specifically state that they do not want to be ‘Looked After’.
Which one to use?
The Department of Health issued a Local Authority Circular ‘Guidance on Accommodating Children in Need and their Families’ (LAC (2003/13). In this guidance, Local Authorities are advised that during the assessment of UASC’s, the presumption should be ‘that he/she would fall within the scope of Section 20 and become looked after, unless the needs assessment reveals particular factors which would suggest that an alternative response would be more appropriate’, for example where relatives are living in the UK and would take responsibility for the child, after the appropriate checks are completed. If a child’s vulnerability means that their welfare could be prejudiced then consideration should be given to applying to the court for a Care Order under section 31 of The Children Act 1989.
The Children (Leaving Care) Act 2000 and the Children Act 1989
Under the legislation, ‘it shall be the duty of the authority to advise, assist and befriend him/her (the young person in question) with a view to promoting his/her welfare when s/he ceases to be looked after by them.’
Unaccompanied Asylum Seeking Children looked after under the Children Act 1989, turning 18, are entitled to ongoing support as Former Relevant children from their local authority under the terms of the Children Act 1989 as amended by the Children (Leaving Care) Act 2000 until the age of 21 or 25 (if pursuing a course of full time education or training). Some young people may not have completed the required 13 weeks before they turn 18 however they will still be entitled to a Service under S.24 of the Children Act 1989. (See Leaving Care and Transition Procedure).
The Home Office is responsible for deciding on the outcome of a child or young person’s asylum claim. The majority of children and young people claiming asylum are not awarded refugee status (less than 20%) or the equivalent Humanitarian Protection status (1%), but are given Discretionary Leave to Remain (DLR). Bexley will support young people to appeal a decision for a refused asylum claim if their legal representative advises there is more than a 50% chance of this being achieved, therefore securing legal aid funding to support this challenge.
DLR is given for a period of 30 months in the first instance, (or in the case of young people who are the victims of trafficking 12 months), or until the age of 17 ½, whichever is the sooner. If they make a claim for further leave to remain before the current period expires they will be allowed to remain for a further period, beyond the age of 18. Children’s Social Care should therefore make sure the young person makes their application for extension of DLR in time, if no application is made they will be treated the same as any other overstayer. If they fail to apply for asylum prior to 18 they are to be treated the same as any other 18 plus asylum seeker, guidance can be found in section 54 and schedule 3 paragraph 2 of the Nationality, Immigration and Asylum Act 2002.
5. Procedure for Unaccompanied Asylum Seeking Children Arrivals in Bexley
In all cases where a referral is received concerning an unaccompanied asylum seeking child, the Looked after Children service will complete the Child and Family Assessment to address the central and most important aspects of the needs of a child / young person. The conclusion of the assessment should provide analysis of the findings leading to a clear understanding of need that will facilitate care planning and inform service provision. The Children & Family Assessment will take account of:
- The age assessment of the young person;
- Ethnicity, religion, gender and language and how these will impact on immediate needs;
- Available information regarding how the young person arrived in the UK, how long they may have been here, possible family or friends that they may be intending to meet;
- The young persons, health and any factors which may increase their vulnerability;
- The young person’s accommodation and financial needs.
All unaccompanied asylum seeking children are by the nature of their circumstances potential children in need. Services should be provided in line with the needs identified using Section 20 and Section 17 of the Children Act 1989. The section of the Children Act that the separated child or young person is supported under is very important, as it not only determines the level of support they are provided with as a child under 18 but also affects whether they are entitled to leaving care support once they reach 18.
Consideration should always be given to the child being seen on its own with an interpreter if needed. Unless they are fluent in English it is not possible to conduct an assessment without an interpreter. The Council has a commissioned service to provide interpreting and translation services to meet this requirement. It is not possible to provide a professional service without being able to communicate with the child. Young people should be provided with translations of information and assessment reports.The threshold of eligibility and priority for services are the same for unaccompanied asylum seeking children as any other child. The same thresholds for child protection responsibilities also apply. There is no difference in entitlement to allowances or financial support because of immigration status for children in need, children looked after and care leavers. Where a child is accompanied consideration needs to be given as to their relationship with that adult and whether private fostering duties and responsibilities apply.
6. Age Assessment
Care of Unaccompanied and Trafficked Children: Statutory Guidance for Local Authorities on the Care of Unaccompanied Asylum Seeking and Trafficked Child (2014) provides that where the age of a person is uncertain and there are reasons to believe that they are a child, they are presumed to be a child in order to receive immediate access to assistance, support and protection in accordance with Article 10(3) of the European Convention on action Against Trafficking in Human Beings. Age assessments should only be carried out where completely necessary e.g. where there is no documentary evidence of the child’s age. Where age assessments are conducted, they must be Merton Compliant.
Determining a person’s age between fourteen and eighteen years of age is not an exact science and there is no statutory procedure or guidance on how to conduct an assessment of a person claiming to a minor. However, in R(B) v Merton LBC  EWHC 1689 (Admin), Justice Burnton issued ‘guidance as to the requirements of a lawful assessment by a Local Authority of the age of a young asylum seeker claiming to be under the age of eighteen.’ Other than in clear cases, it states that age cannot be determined on appearance alone, an assessment must be carried out based on personal history as well as ethnic and cultural information, social services must not simply adopt the decision of the BIA (Border and Immigration Agency) and the decision maker must give adequate reasons for a decision that an applicant claiming to be a child is not a child.
If there are significant reason to doubt the young person's age an Age Assessment should be completed. An assessment of age is carried out if:
- There is no documentation to prove a young person's age;
- Their physical appearance and demeanour suggests they may be older or younger than they claim to be;
- If the Home Office has disputed their age. In this case, a IS97M will be issued.
The ADCS Asylum Task Force has worked with the Home Office to provide a set of jointly agreed “good practice documents, these documents are offered as practice guidance, by way of assistance to Local Authorities and their partners. The content does not, nor does it seek to, be binding on Local Authorities. It is simply a recommended approach. Good practice documents can be accessed via the ADCS Website.
Assessing fieldworkers should assess from a holistic perspective, and in light of the information available. It is a process of professional judgement and a particularly sensitive issue involving many variables; not least the fieldworker's ability to understand the cross-cultural issues that might apply.
Decisions on age assessments are sometimes required in a short time. Where there is uncertainty, the benefit of doubt should always be given to the young person. In completing the assessment is mindful that the UASC has the right to legally challenge the conclusion. If a young person is assessed as being over 18, they should be given a copy of the assessment and advised to seek independent legal advice.
The age assessment will form part of the Child and Family Assessment.
Age assessments should be carried out by two workers one of whom should be social work qualified, trained and experienced in undertaking age assessments. Assessing social workers should explain their role clearly to the Unaccompanied Asylum Seeking Children. Attention should be paid to tiredness, trauma, bewilderment and anxiety of the Unaccompanied Asylum Seeking Children. It is important to be mindful of the 'coaching' that the Unaccompanied Asylum Seeking Children may have had prior to arrival in how to behave and what to say. It is important to engage with the Unaccompanied Asylum Seeking Children and establish as much rapport as possible.
Assessing social workers should inform the Unaccompanied Asylum Seeking Children that they will have to answer many questions and that it may be difficult and distressing to answer some of the questions. Social workers should use open-ended, non-leading questions. The use of circular questioning is a useful method, as it is less obvious to the person being assessed that the questions relate directly to age, and hence may reveal a clear picture of age related issues.
In determining age, note should be made that some societies do not place a high level of importance on age and may calculate it in different ways. Some children will genuinely not know their age, and this can be misread as lack of co-operation. Levels of competence in some areas or tasks might not mirror our expectations of a child of the same age.
It is essential to feed back to the young person the conclusion of this assessment.
7. Age Disputes
If the young person wishes to contest any of the issues raised within the age assessment, this could be done initially in discussion with their worker and if necessary with the worker’s manager. If the young person continues to be unhappy they should be given information about the complaints procedure. Complaints leaflets should be given to Unaccompanied Asylum Seeking Children and where possible in their own language (see Bexley Complaints Leaflet).
If doubts arise regarding a UASC’s age then there should be a comprehensive review going through three levels:
- Level 1 (immediate assessment at point of entry). The young person's given information/appearance (pen picture, physical development), views of other professionals, medical advisor, immigration officer, social and education information;
- Level 2 (by the end of the assessment) when the assessing social worker and carer have undertaken a more detailed assessment of the young person's social, emotional and behavioural presentation over a short period of time, and a second medical opinion has been obtained namely from a health professional;
- Level 3 (by the first Looked after Children review) when the assessing social worker and carer have undertaken a more in depth assessment of the young person's needs and will include information on:
- Physical presentation: include pen picture, physical development, observations of clothing, evidence of financial resources.
- Social presentation: to include observations of behaviour, interactions with others, self-care skills.
- Emotional and behavioural presentation: to include observations of relationships with others, evidence of anxiety or worries, being harmed, or the fear of harm.
- Medical assessment: to include the findings of a comprehensive medical examination.
This must be available to the first review as a written report.
It is vital that the agreed age of the young person is entered on all appropriate records and communicated immediately to the Home Office.
8. Placements and Allocated Workers
The Hillingdon Judgement and subsequent guidance (LAC (2003) 13) makes clear that all Unaccompanied Asylum Seeking Children fall within the scope of Section 20 of the 1989 Children Act. All placements should reflect the assessed needs of the child or young person, although it is acknowledged that needs may change as the assessment progresses and an alternative placement may need to be found. The department will strive to match the assessed or perceived need as follows:
- All Unaccompanied Asylum Seeking Children will be accommodated under Section 20 - in a suitable placement in accordance with their age and assessed needs;
- In very exceptional circumstances, children over the age of 16 may be supported under Section 17, this decision must be endorsed by the Head of Service;
- If not accommodated under Section 20: Young people are not entitled to care leaver status;
- If granted Refugee Status/Further Leave to Remain, the young person will be entitled to access the welfare benefits system post 18 years.
Following assessment by the Looked after Children team, the completed assessment will inform the Unaccompanied Asylum Seeking Children's Care Plan:
- All children under 18 years old will be allocated a qualified social worker from the Looked After Children service;
- The initial Looked after Child Review must be booked at the earliest opportunity so that an Independent Reviewing Officer can be assigned to the child.
The allocated worker will complete further assessments as appropriate and put the Care Plan into action. The Independent Reviewing Officer will conduct the initial Looked after Child Review in the same way as for any other looked after child.
Where there is a dispute/uncertainty about the young person's age, a risk assessment should be undertaken to minimise the potential dangers to vulnerable others already in placement, and the welfare and emotional wellbeing of the young person to be placed. Immigration Officers can refer Unaccompanied Asylum Seeking Children to a doctor if there is a doubt about age, in practice Immigration Offices most often record 'age' claimed and date of birth 'claimed' on their paperwork.
9. Placement Options for Unaccompanied Asylum Seeking Children
A careful evaluation of the young person’s needs and wishes will need to be undertaken in order to identify a suitable placement. A full and considered assessment may not be possible at the initial meeting with the young person, yet it is likely that a placement will need to be identified.
It may be necessary, therefore, to place the young person temporarily pending further assessment and identification of a suitable placement. The young person and carers/providers should be made aware of this, and further assessment undertaken at the earliest opportunity. The temporary nature of the accommodation should be recorded on the LAC papers and the service manager notified if the young person is still placed in the accommodation after four weeks.
Bed and breakfast accommodation is not suitable and should not be used for Unaccompanied Asylum Seeking Children.
Young people may be placed in foster / residential care if this appears the best option due to their development and vulnerability. For many young people aged 16-17, a placement in Semi-Independent Placements or Supported Lodgings may be more appropriate, where they receive support from key workers. For children who may have been trafficked, an out of area placement may be appropriate to put distance between the child and where the traffickers expect them to be (see Out of Area Placements Procedure).
Foster carers may need support in understanding the particular needs of UASC in relation to cultural differences, education, language differences, religious differences and the effects of trauma. The Placement Service alongside the child social worker will ensure that the identified carers/providers will be able to meet the particular identified needs on the long term. Another placement will be sought if this was proven to be difficult. The Fostering Service offers specific training for foster carers caring for UASC, and ensure each child and placement has a personalised plan to meet identified need (which needs to be discussed at the placement planning meeting).
Foster carers/providers will need to be carefully and accurately briefed about the young person’s cultural, religious and ethnic needs and about the situation/their experience in the home country and during the journey to the UK. Any particular dietary needs will need to be identified and discussed with carers.
The young person should, at the point of placement, be given the name and contact number of a social worker who s/he can contact and, where the placement is made by a duty social worker, a social worker should be allocated without undue delay.
The young person should also be provided with the Emergency Duty Team (E.D.T.) details.
The expectations and rules of the placement should be carefully explained to the young person, together with any financial arrangements that will apply. It should be borne in mind that the young person’s primary needs are likely to be for food and shelter, a bath, clean clothes and caring adults. The physical appearance of the placement, its location and who lives there should be explained to the young person before s/he is taken to the placement. An orientation with the local area will need to be organised to include relevant points of contact with the young person’s community, support agencies and religion.
If any young person goes missing from placement then the ‘Children Missing from Care’ procedures must be followed in all cases (see ‘Children Missing from Home, Care and Education’, London Child Protection Procedures).
If it becomes apparent that the young person has family or/and friends living within the UK consideration should be made as to the appropriateness of placing them with their family members following the appropriate checks and assessments. The relevant and necessary assessment and checks for a kinship care/connected persons assessment should be completed in the usual way (see Placements with Connected Persons Procedure).
10. Assessment, Planning and Review
Assessment informs more appropriate care planning. It must be managed sensitively to reduce fear, anxiety or confusion. Ethnic origin and life experiences before arrival in this country will influence personal development and may impact on visual or emotional presentation.
Enabling the Unaccompanied Asylum Seeking Children to be part of the assessment process is extremely important as in most cases they will be the major source of information. Consideration must therefore be given to securing an interpreter with the level of skill and experience necessary to support the individual to understand why an assessment is necessary, and what will happen. Consent to gather or share information with another agency must be obtained.
The Office of the Children’s Commissioner recommends that the local authority provides child-friendly literature, in a language that Unaccompanied Asylum Seeking Child can read and understand, at the time the child is accommodated, the rights to which the child is entitled, the purpose of the review and what will happen at a review. Also that the social worker has seen the child before the review, told the child what is to be discussed at the review and the purpose of the review. An interpreter will be provided at statutory reviews.
Education and training
As far as admission to school or college is concerned, Unaccompanied Asylum Seeking Children have the same rights as any other Looked after Children in Bexley.
When a young person is admitted to care or moves care placement, the Personal Education Plan (PEP) will be set up within 20 days of coming into care and reviewed at regular and defined intervals. This Plan is initiated by Children’s Social Care but is contributed to by the school, Virtual School, carers and any other appropriate professionals. The child/young person also has a major input into this plan and is consulted on identified short, medium and long-term targets.
Assessment Planning and Review Specific Issues
- The majority of these young people will feel isolated without family or friends in this country;
- The potential for making contact with birth family in country of origin;
- Educational attainment will vary greatly, depending on their country of origin, previous formal education and fluency in speaking and comprehension of English;
- Health problems may not have been diagnosed due to limited health services in their country or origin;
- Experience of prejudice against asylum seekers;
- Feelings of uncertainty and anxiety whilst their claim for asylum is considered;
- The young person may have suffered torture and be traumatised by this abuse;
- It is useful to have background information about the young person’s country of origin;
- Planning and preparation for possible return to country of origin.
All children looked after may experience difficulties because of their situation, the combination of the above factors can only compound the specific vulnerability of UASC.
The child should be offered an Independent Visitor and, if they decline, their reasons should be recorded. Any Independent Visitor appointed should have appropriate training and demonstrate an understanding of the needs faced by unaccompanied or trafficked children.In addition, unaccompanied children should be informed of the availability of the Assisted Voluntary Return Scheme.
11. Transition at 18 Years
We need to plan for three possible outcomes for those turning 18. As their asylum status will determine their right to public services as adults. This is known as triple planning and should be part of the statutory planning through the care plan, pathway plan and review process. Planning for three possible outcomes at 18 includes:
- Equipping the young person to have a future in the UK if they receive some form of leave to remain in the UK past their 18th birthday, via pathway planning;
- Preparing the young person to be returned to their country of origin if they are refused an extension to remain in the UK and are being returned to their country of origin; or if they decide to return of their own accord;
- Supporting young people who are refused leave to remain in the UK and who have exhausted all appeals but have not yet been removed. These young people are referred to as ‘Appeal Rights Exhausted’.
In all instances, the young person’s immigration status and implications post 18 need to be recorded comprehensively in the Pathway Plan, with contingencies should the immigration status change.
The law relating to asylum seekers who no longer have leave to remain can be complex and terminology can cause confusion. Broadly, the position is as follows:
Unlawfully in the UK
The law on the withdrawal of Local Authority support to young people is included in the Schedule 3 of the Nationality, Immigration and Asylum Act 2002 which prevents certain groups of migrants from accessing “leaving care” and other types of support. Most Appeal Rights Exhausted’ young people in the care of Bexley will fall under paragraph 7 of this Schedule which outlines the category of people “unlawfully in the UK”.
Failed Asylum Seeker
The law states that young people who are considered to be ‘failed asylum seekers’ are entitled to continue to receive leaving care support from social services up to the point where they fail to comply with the removals directions set by the immigration service, (a removal direction details the time and place of removal from the UK). Being a failed asylum seeker is not sufficient cause on its own to withdraw or withhold social services support. They must have in addition, failed to comply with the removal directions issued in respect of them (Schedule 3 of the Nationality, Immigration and Asylum Act 2002). These young people will be those who applied for asylum at the port of arrival and at no time received a grant of leave to enter the UK. It is unlikely that any young people in the care of Bexley will fall into this category as they are usually “in country” applicants. If there is any uncertainty about the status of a young person, this will need to be established by the UKVI case holder.
Withdrawal of Leaving Care Services
Local authorities are currently prohibited from referring a young person, to whom leaving care duties are owed, to the Home Office for accommodation for asylum seekers or refused asylum seekers if the young person would otherwise be eligible for Leaving Care support when they turn 18. The local authority rather than the Home Office would therefore be responsible for providing support, if, for example, the young person has a pending first asylum application or has been refused and made a fresh asylum application. (SO v Barking & Dagenham  EWCA Civ 1101)
For those young people who gain indefinite leave to remain or Refugee status, they will continue to receive services under the Children Leaving Care Act.
If a care leaver is refused asylum or has been given no immigration permission they will be excluded from accommodation and financial assistance under Schedule 3 Nationality, Immigration and Asylum Act 2002. Support can be provided if the local authority determines this is necessary to prevent a breach of the care leaver's human rights or rights under EU treaties. This means that where a care leaver has never regularised their stay or they are 'appeal rights exhausted' following an unsuccessful immigration claim, a human rights assessment must be completed to establish whether support should continue to avoid a breach of article 3 or article 8 rights or whether the young person can return to their country of origin.
The young person should be informed in writing of the Local Authority’s intention to conduct the assessment, how it will be done and who will be consulted and a reasonable timescale should be set. This would usually be achieved within four weeks. If the outcome of the assessment is that the withdrawal of services will not lead to a breach of a young person’s human rights, a reasonable notice period, (usually four weeks), will be given to advise the young person of the withdrawal of support. Existing support with accommodation and allowances will continue throughout this period and the young person will be advised regarding alternative avenues of advice and support such as the Refugee Council.
Young people who are entitled to Asylum Support when they turn 18 include:
- Young people who do not have a decision on their initial asylum application (usually affects those who have arrived within 2 months of their 18th birthday);
- Young people who have an outstanding appeal against an outright refusal of asylum but only if they have not been granted any other form of leave, such as a period of discretionary leave;
- Young people who have applied for an extension of leave to remain ‘out of time’, i.e. after their leave has expired, and their asylum claim is being treated as a ‘fresh application’ by the Home Office (this decision is not made by NASS).
Young people who have refugee status, humanitarian protection or discretionary leave (including those who are applying for an extension in-time or are appealing a refusal of extension) will be entitled to apply for mainstream benefits.
If the young person is not receiving leaving care support because they were previously supported under Section 17 of the Children Act 1989 and/or they arrive within 13 weeks of turning 18, they will be transferred from Social Care Services support to Asylum Support on their 18th birthday - if they fit the Asylum Support criteria and receive subsistence and accommodation directly from Asylum Support.
Accommodation for New Asylum UASC still Awaiting Decision at 18 years
The New Asylum Model is designed so that UASC will receive a decision on their application prior to their 18th birthday, however if the Unaccompanied Asylum Seeking Child has not received a decision a minimum of 4 weeks prior to their 18th birthday then a NASS application form needs to be completed and sent. Support needs, actions and financial arrangements need to be clearly outlined in a Pathway Plan and Needs Assessment.
Communication with NASS needs to take place and arrangements made for Children’s Social Care to receive £140 weekly payment from NASS to continue to accommodate the Unaccompanied Asylum Seeking Children. If that amount does not cover the full weekly accommodation costs then Children’s Social Care have a duty to pay the outstanding amount until the asylum application decision is made.
This is in accordance with NASS Policy Bulletin 29 - please refer to this if there are any concerns or queries. (Also see UKVI Transition at age 18 instruction).
If the initial asylum application has been refused by the Home Office then the Unaccompanied Asylum Seeking Children will need to contact a solicitor to appeal within 10 working days.
Grant of Asylum - Limited Leave to Remain (LLR)
Recognised as a refugee under the Refugee Convention (1951) applying due to issues of race, religion, nationality, political opinion, social group, no state protection (unable to live safely in ANY part of their country of origin).
Limited leave to remain is now granted and mostly is limited to 5 years in the first instance.
The Applicant will then have to make a further application to extend the limited leave to remain prior to the end of the first 5 years. However, this is likely to be granted again unless involvement in criminal activity or a significant change in the country of origin.
Grant of Humanitarian Protection (HP)
This does not mean that the Unaccompanied Asylum Seeking Children is recognised as a refugee. Humanitarian Protection is granted on grounds of risk of unlawful killing, death penalty, or breach of article 3 of the European Court of Human Rights Act (right not to be subjected to torture, inhumane or degrading treatment or punishment).
Limited to 5 years, however an application can be made of ILR at the end of the 5 years. This is likely to be granted again unless involvement in criminal activity or a significant change in the country of origin.
Discretionary Leave to Remain (DLR)
If the Unaccompanied Asylum Seeking Children is refused Indefinite Leave to Remain (ILR) and Humanitarian Protection (HP) it means that the claim for asylum is not successful or that the Unaccompanied Asylum Seeking Children is not considered at risk to return to the country of origin.
This is the most common outcome of application on asylum.
This Leave is granted only up to the age of 17.5yrs or for 3 years, whichever is the shortest period.
If the applicant is over 17.5yrs when the application is made then they will not be granted any Discretionary Leave to Remain (DLR) but will not be removed from the UK whilst they are under 18 yrs.
If DLR is granted and the Unaccompanied Asylum Seeking Children has more than 1yrs DLR issued then an appeal on the decision can be lodged to the Asylum and Immigration Tribunal.
The Unaccompanied Asylum Seeking Children has an automatic right to appeal however a solicitor may not be able to represent the Unaccompanied Asylum Seeking Children if the appeal does not meet the specific merits under the Legal Aid criteria.
If there are merits for appeal then it should be made immediately and not wait until the Unaccompanied Asylum Seeking Children is approaching 17.5yrs.
Main Rights if Discretionary Leave to Remain (DLR) is granted
- Right to work subject to employment legislation;
- Right to continue to access support for the Children and Young People’s Department;
- Right to claim benefits and accommodation (via Local Authority and housing providers);
- Right to travel - travel documentation required if the Unaccompanied Asylum Seeking Children has no passport. Application form and fee will be required. However, the Unaccompanied Asylum Seeking Children should NOT travel to their country of origin.
Applications for Further Leave to Remain
Check the date for expiry on the Unaccompanied Asylum Seeking Children leave papers and make an appointment with a solicitor at least one month prior to the end date. (You can book a few months in advance).
For those granted Discretionary Leave to Remain on or after 1st April 2007 then they must make an application for Further Leave to Remain before they reach 17.5 years of age. It is likely that a decision on this application will be made prior to the Unaccompanied Asylum Seeking Children turning 18 years. Therefore Article 8 under the European Court of Human Rights Act is limited.
The application form should be completed by a solicitor and must be returned to the Home Office by the last day stated on the Leave to Remain documentation. Failure to do so will mean that the applicant is an “illegal over-stayer”.
If an application for Further Leave to Remain is made then the applicant has rights under the previous leave that they were granted. Therefore, if previously granted Discretionary Leave to Remain then the Unaccompanied Asylum Seeking Children can still claim benefits, accommodation etc post 18th birthday. This is stated under the Immigration Act (1971).
There is no fee for the application for Further Leave to Remain, however 4 passport sized photographs need to be provided with the application.
Asylum and Human Rights grounds can be raised again; however the Home Office will continue to rely on any contents of previous refusal letters. Reasons for the first refusal therefore must be addressed via the solicitor.
Character references can help. These can show to the Home Office that the Unaccompanied Asylum Seeking Children has settled into life within the UK and has made a social contribution. However, it is also positive to identify current vulnerabilities for the young person.
References should always include:
- Name and occupation of the referee;
- Length of time the applicant has been known;
- What role you know the applicant;
- How you have observed the applicant integrating into society;
- Whether the applicant is of good character and reasons why (attendance at college, work, helpful, politeness, attending appointments);
- Issues of applicant’s vulnerability which would demonstrate continuous need for dependency on external organisations / effect of trauma etc.
A total of 6 years of Discretionary Leave needs to be granted in order for ILR to then be granted.
If Leave is not granted then the applicant has 10 days in which to lodge an appeal with the Asylum and Immigration Tribunal (AIT).
Interaction between the Children’s Social Care and Solicitors
Workers for the Children’s Social Care should never be expected to complete any Home Office forms. If documentation is received by the Children’s Social Care then it should be forwarded to the Unaccompanied Asylum Seeking Children’s solicitor.
Do not delay with this as there are specific deadlines in which the solicitor will need to respond.
Refer clients to specialised agencies and if this happens then ensure that the solicitor is aware of this when completing the Statements of Evidence Form (SEF) or Leave to Remain documentation as this evidence of support leads to a stronger application.
13. Other Issues
- The Red Cross can help trace family members; Children’s Social Care can make referrals on behalf of the Unaccompanied Asylum Seeking Children if requested;
- Any criminal activity must be made aware to the Home Office via the solicitor as it needs to be identified on the Leave to Remain applications. Even minor offences can be held to negatively affect an applicant’s reliability;
- Legal Support - From 1st April 2013 Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LAPSO) brought significant cuts to legal aid for immigration cases. Bexley will support young people to access appropriate legal representation in order to appeal an immigration claim refusal if it is an assessed need; legal aid does not cover the costs; the legal representative for the Young Person advises there is more than a 50% chance of success; and the young person cannot fund this appeal themselves. Although there is no explicit provision stating that Local Authorities are required to underwrite the cost of a child/care leaver's legal fees if they cannot access mainstream legal aid, we have to consider whether to do so will be the best way to meet the child/ care leaver's identified needs and whether by not doing so would breach the legal obligations under the UN Convention on the Rights of the Child (UNCRC) to treat the child's best interests as a primary consideration in all actions. Where regularising a child/ care leaver's immigration status will have a significant impact on their present and future wellbeing, stability and prospects, Bexley will take active steps to support them in resolving their immigration case. This may include supporting the child/ care leaver to access appropriate independent legal assistance and underwriting the cost;
- Interim National Transfer Protocol for Unaccompanied Asylum Seeking Children 2016-17: London Borough of Bexley is part of the interim national transfer protocol for unaccompanied asylum seeking children that has been created to enable the safe transfer of unaccompanied children from one UK local authority (the entry authority from which the unaccompanied child transfers) to another UK local authority (the receiving authority) from 1 July 2016. The interim transfer protocol forms the basis of a voluntary agreement made between local authorities to ensure a fairer distribution of unaccompanied children across all local authorities and all regions across the UK. The full protocol can be accessed via the following website: Interim National Transfer Protocol for Unaccompanied Asylum Seeking Children 2016-17 (DfE, 2016).