ChildRIGHT: Duty of Care -- Care of former asylum-seeking children

The shift from childhood to adulthood is a difficult time for any young person, struggling with concerns around relationships, education and careers. In recognition of this, the Children (Leaving Care) Act 2000, which came into force in October 2001 and builds on and amends the Children Act 1989, sought to ensure that young people do not leave care until they are ready and that they receive more effective support once they have left.

For those who are unaccompanied or separated and claimed asylum in the UK as children, the future holds considerable additional anxieties when they turn 18. As well as those problems and challenges faced on arrival in England, including separation from family and friends, social isolation, language barriers, emotional and mental health problems, discrimination and racism, many unaccompanied young people will also have to live with an uncertain future and the anxiety of possible removal from the country. Furthermore, their immigration status can have a significant impact on their entitlements, and often both statutory service providers and the young people themselves, are unclear as to what housing, subsistence and other support former unaccompanied asylum-seeking children are entitled to when they turn 18.

The recent case of R (on the application of SO) v London Borough of Barking and Dagenham went some way to clarifying this issue. The case involved a 20-year-old former unaccompanied asylum-seeking child from Eritrea, who arrived in the UK in 2007 and was accommodated by the London Borough of Barking and Dagenham. It examined whether or not the local authority still owed a duty to provide the child with accommodation and support as a care leaver after he turned 18. Reversing the decision of the lower court, the Court of Appeal not only held that local authorities have a general duty to provide a former relevant child with accommodation under section 23C(4)(c) of the Children Act 1989 "to the extent that his or her welfare requires it", but also that a local authority is not entitled, when considering whether the child should be provided with accommodation, to take account of the possibility of their receiving asylum support. Therefore, it is not permissible for a local authority to send a former unaccompanied asylum-seeking child to the UK Border Agency for support on turning 18. Instead, it will fall to local authorities to continue to provide accommodation and support to former relevant children who are asylum seekers or failed asylum seekers until the age of 21 (or 24 if the young person is pursuing a programme of education or training).

Lack of clarity over responsibility

This is the first time that this issue has been decided by the courts, and the judgment is significant. Four years ago the children's commissioner expressed concern to the Joint Committee on Human Rights that "many young people are being put under considerable stress by the lack of clarity as to who is responsible for their support at this stage" and this has been an ongoing area of concern for professionals working with refugee and asylum-seeking children.

Local authorities may be concerned that they will be subject to extra financial burden, but for the young person it will often be preferable to remain in the care of the local authority. If, for example, responsibility for a young person whose asylum claim has been unsuccessful is transferred from the local authority to the UK Border Agency, the child may face dispersal to another part of the country, and may receive a more limited form of support.

The majority of former unaccompanied asylum-seeking children will have been supported under section 20 of the Children Act 1989 and therefore entitled to leaving care support services from their local authority after they turn 18. However, it is still possible that some may yet become ineligible for support. These are the young people who have been refused asylum or temporary protection, or their leave to remain has expired and they have exhausted all appeals - generally referred to as "end of line" cases. Such children may, when they reach 18, find themselves in limbo - they have no right to remain but cannot be removed, often because the Home Office is unable to obtain travel documents to enable the child to return to his or her country of origin.

Withdrawal of support

The law on the withdrawal or withholding of local authority support to young people is outlined in Schedule 3 of the Nationality, Immigration and Asylum Act 2002, and this provision states that those "unlawfully in the UK" are excluded from receiving support under sections 23C, 24A or 24B of the Children Act 1989. Failed asylum seekers will also be excluded under Schedule 3 but only if "they fail to comply with removal directions". In both cases, a local authority will still be under a duty to provide support if this is necessary to prevent a breach of the individual's human rights, and a human rights assessment should be undertaken but S(O) v Barking and Dagenham does not address this issue. It simply makes clear that while a young person is eligible for leaving care support they should be receiving this from the local authority.

Local authorities frequently raise a range of concerns about the funding available to support former unaccompanied children and funding problems are often cited as a barrier to providing appropriate support. In this current climate, this will invariably continue to be a problem. However, the withdrawal of support under Schedule 3 can result in many "end of line" young people disappearing from the radar and going underground where they may be vulnerable to exploitation.

Far more work needs to be done to look at genuinely durable solutions for these young people, including an examination of the reasons why they are not convinced that they can return safely to their country of origin. While they are the in the UK, this judgment represents a positive step to ensuring that they receive the support that they need.