Denying refugee children protection

In July, the government published its Nationality and Borders Bill, referring to it as “the most comprehensive reform in decades to fix the broken asylum system”. The bill’s key objectives include making the asylum system fairer and more effective so that the government can better protect and support those in need of asylum and “deter illegal entry into the UK, breaking the business model of criminal trafficking networks and saving lives”. However, many organisations – including the United Nations High Commissioner for Refugees (UNHCR) – have been outspoken in their assessment of the provisions within the bill, going as far as to say that it would violate the 1951 Refugee Convention.

In relation to children, the bill contains significant threats to the rights and entitlements of young asylum seekers and refugees and, if implemented, would undermine the UK’s international obligations under the United Nations Convention on the Rights of the Child (UNCRC).

‘Good’ and ‘bad’ refugees?

The bill proposes to treat refugees differently based on their mode of arrival in the UK.

A recognised refugee could face being granted only temporary leave, denied permanent status and unable to apply to bring their close family members to join them. There is a risk of an arbitrary two-tier asylum system, with some refugees treated less favourably, based not on their need for protection but on how they got to the UK, undermining the Refugee Convention 1951 and hindering recovery and integration.

Children and young people who are fleeing war and persecution need safety and rehabilitation. Under the government’s proposed system, they would be denied certainty about their future as well as vital rights such as family reunion.

While the government maintains that this would deter refugee arrivals, any evidence of this is yet to be released. There is, however, evidence of the number of children who would be affected by these measures: between 2010 and 2020 children and young people constituted almost a quarter (23 per cent) of all asylum applicants and dependants – 85,871 out of 372,560. The government has so far failed to undertake a child’s rights impact assessment or consult with young asylum seekers and refugees, in contravention of its obligation to ensure their best interests are considered.

Accommodation centres

The government is proposing to accommodate people seeking asylum in large-scale accommodation centres rather than in local communities. No assurance has been given that this will not include families with children.

The dangers of this isolated type of living were highlighted in an investigation by inspectors from the Independent Chief Inspector of Borders and Immigration and Her Majesty’s Inspectorate of Prisons into the conditions at Penally Training Camp and Napier Barracks, two former Ministry of Defence properties used to house people seeking asylum in shared dormitories at the peak of the Covid-19 pandemic. Inspectors found that about a third of residents at Napier said that they felt suicidal. Conditions were described as cramped and unsanitary.

Children who have been traumatised by war and persecution require a clean, safe and healthy environment to rebuild their lives. They should be welcomed into communities that can support them to integrate.

Flawed age assessment

The government is also proposing changes to age assessments for unaccompanied minor children. This includes the establishment of a new National Age Assessment Board (NAAB) which would conduct “direct age assessments itself where required or where invited to do so by a local authority” and act as “a first point of review for any local authority age assessment decision”. The government also proposes that the NAAB would set out “the criteria, process and requirements to be followed to assess age, including using the most up to date scientific technology”.

Very little detail on these plans has been forthcoming but nonetheless they raise safeguarding concerns as they increase the likelihood of children being deemed adults and placed in accommodation with adults or worse, in detention centres.

Conducting age assessments is complex and should be separate from and independent of the Home Office.

Identifying trafficked children

The bill’s provisions will make it more difficult to identify and protect child victims of trafficking. It raises the threshold for recognition as a victim of trafficking from the consideration that a person may be a victim to that they are a victim. This is concerning, particularly following recent Home Office figures which showed that four out of five human trafficking claims which were rejected and challenged in the UK last year were overturned, and data released in October 2020 which revealed that of almost 4,700 confirmed foreign victims of trafficking, only 28 children were granted leave to remain in the UK over a four-year-period. It is likely that the bill will result in more children slipping through the net, leaving them vulnerable to re-trafficking.

The bill also proposes to preclude child victims who have served custodial sentences of one or more years, as well as those prosecuted for specific offences, from being identified as victims, despite the growing prevalence of child criminal exploitation through county lines. This is incompatible with the UK’s obligations under human rights and anti-trafficking treaties.

An anti-refugee bill

The government’s new plan for immigration will not deter people from embarking on perilous journeys to the UK. Instead, it will risk the safety, stability and wellbeing of thousands of vulnerable children, young people and families and may even cost them their lives. If the government were truly interested in breaking the business model of traffickers and saving lives, it would come up with a plan for an asylum system which had safe routes, family reunion rights and resettlement for refugees at its heart.

• Joyinola Layonu is currently a student on the Bar Practice course
  
  

POINTS FOR PRACTICE

• It is important to remember that none of the provisions have come into force yet and the bill still has to pass through parliament. Therefore the current immigration and asylum rules apply for now.

• The UK government, as part of the New Plan for Immigration, intends to consult and make changes to asylum support provisions for care leavers (originally proposed in the Immigration Act 2016). Full details of the proposals are yet to be disclosed, but there is likely to be a consultation for local authorities and other stakeholders. Practitioners should keep an eye out for these forthcoming consultations.

• Practitioners should be aware that pilots have begun as part of the establishment of the new National Age Assessment Board. Practitioners with any concerns around age assessments should contact a community care solicitor.

• Practitioners should register their concerns about the bill with their local MP.
  
  

FURTHER READING

• More on the concerns of UNHCR, from www.unhcr.org/uk/

• More about the age assessment proposals, from https://media.refugeecouncil.org.uk
  
  
  

Legal news in brief

Good Law Project local authority legal challenge
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Alleged nursery discrimination
The Scottish Health Secretary Humza Yousaf has launched legal action against a Dundee nursery claiming they breached the Equality Act 2010 on the grounds of race and religion. Mr Yousaf’s wife, Nadia El-Nakla, applied for a place for their two-year-old daughter and was told that there was no availability while applications submitted by friends and family for “white Scottish-sounding names” were accepted.

Domestic Abuse Act consultation
The Home Office is consulting on draft domestic abuse statutory guidance which will support the implementation of the definition of domestic abuse in England and Wales at Sections 1 to 3 of the Domestic Abuse Act. The guidance aims to support frontline professionals who have responsibilities for safeguarding and supporting victims of domestic abuse and extends to children’s social care providers and education settings. The consultation closes on 14 September 2021.

New Scottish guidance on sibling care placements
The Scottish government has published guidance to support the implementation of the new duties for Scottish local authorities that every looked-after child will live with their brothers and sisters, where appropriate to do so. The new duties mean that siblings should be supported to sustain lifelong relationships, if appropriate, even if they cannot live together.