Since the passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, Coram and other children's charities have highlighted the negative impact of the removal of legal aid for immigration cases on children. Without access to legal help and representation, children can struggle to advocate effectively for their rights, leaving them at risk of being cut off from education, healthcare, support, and even facing removal to another country. Children in the care of children's services are particularly vulnerable. The laws, processes and systems governing their circumstances are complex and while social workers have a duty to plan for the long-term future of a child in their care, they are rightly prohibited from assisting children in making immigration applications because immigration advice is heavily regulated.
In light of these challenges, charities welcomed the Ministry of Justice announcement in July that immigration matters for unaccompanied and separated children in care will be brought back into the scope of legal aid "to ensure access to justice". This followed years of campaigning and strategic litigation and is a welcome first step to ensuring that these children receive the legal support they need.
Children with immigration concerns
In its recent report, Rights without Remedies, Coram Children's Legal Centre estimated that there are several thousand children in local authority care (either looked after under section 20 of the Children Act 1989 or are formally in care) where immigration is the primary issue, not asylum or trafficking. This includes children who may have been brought to the UK with family when they were young and whose visa expired, leaving them without status. The University of Oxford has estimated that there are more than 100,000 undocumented children in the UK, over half of whom were born here, but they are a hidden population. Coram's Migrant Children's Project alone advised 234 separated children and young people with an immigration issue for which they could not get legal aid last year.
A child who has grown up in the UK will usually have a strong claim to remain based on their right to a private and family life under Article 8 of the European Convention on Human Rights. A child who was born here may be able to apply directly for British citizenship. However, these applications are far from straightforward.
Advice and representation
For a child with unresolved immigration issues, expertise and specialist knowledge are required to examine their case file and to identify a course of action, including what evidence is needed and how it can be obtained and applied to the law. Expert reports, such as an independent social worker report to examine the needs of a child or a country expert report, are frequently a key part of the evidence in an immigration case raising human rights concerns. People often do not have an adequate understanding of the substance of the law, how it applies to their case and how to articulate their arguments in writing or before a tribunal or court. This can be exacerbated by age, language barriers and difficulties with literacy and comprehension.
A failure to assist the child in care to obtain legal advice and/or representation where it is needed amounts to a breach of statutory duties. A clear example of this was provided in a recent Local Government Ombudsman decision that the Royal Borough of Greenwich had failed to assist a child in care to obtain representation and regularise her status. Greenwich was found to have failed in its duties, owing compensation of £5,000 and an apology. It was also told to improve practice and ensure staff were trained.
Cost shift
Until now, acquiring legal advice for a child has involved paying at private rates which are likely to be significantly more expensive than legal aid rates, resulting in an estimated cost shift onto local authorities of an estimated £10m a year. The restoration of legal aid for this group removes any financial disincentive to providing this group with advice and representation. As Brexit looms, concerns have also been raised about the status of European national children in care, many of whom might need legal advice at the earliest opportunity. The government will need to undertake a campaign to inform local authority frontline staff of the forthcoming changes, so that there is no delay for children in need of legal help.
POINTS FOR PRACTICE
- Statutory guidance makes clear that local authorities' obligations extend to considering unaccompanied children's need to have their immigration status issues resolved as well as their need for legal services.
- The Ministry of Justice has also made clear that while it is working on the necessary legislation to bring immigration legal aid back into scope for unaccompanied children that they should be presumed eligible for legal aid via the exceptional case funding scheme.
For more information, visit the Migrant Children's Project's resources at www.childrenslegalcentre.com
