Failure to protect migrant children
Kamena Dorling
Tuesday, February 7, 2012
The UK Border Agency continues to prioritise immigration control over the rights of children, says Kamena Dorling, policy and programmes manager at Coram Children's Legal Centre
Most separated children arriving in the UK alone are seeking asylum – others may have been trafficked for exploitation. All separated children are legally entitled to receive the care and protection they need, and their immigration status should not be a barrier to their doing so. This is clear in both international and domestic legislation: article 3(1) of the UN Convention on the Rights of the Child (UNCRC) requires that "in all actions concerning children… the best interests of the child shall be a primary consideration."
Last year’s Supreme Court case ZH (Tanzania) held that article 3 has been translated into domestic law in spirit if not in precise language. Furthermore, under section 55 of the Borders, Citizenship and Immigration Act 2009, the Secretary of State must make arrangements for ensuring that her functions are discharged having regard to the need to safeguard and promote the welfare of children in the UK.
Yet, despite this clear duty, the UK Border Agency (UKBA) is still often criticised for prioritising immigration control over the best interests of children, and the recent report from the Office of the Children’s Commissioner, Landing In Dover: the Immigration Process Undergone by Unaccompanied Children Arriving in Kent, confirms this ongoing concern.
In 2009, a report by Refugee and Migrant Justice (RMJ) raised grave concerns around the treatment of children upon their arrival into the UK. It found that children had been arrested, detained for up to 24 hours, denied vital medical attention and sometimes food before "being subjected to an arduous interview about their immigration status". These interviews had been taking place without a legal representative or independent adult present.
Information obtained from the child was then frequently used against their claim for international protection. Landing in Dover found that, despite RMJ’s report and subsequent litigation, there is still a lack of adequate safeguards for children on arrival to the UK. Instead of immediately being referred to children’s services, children are still detained for longer than the "shortest appropriate period of time"; inappropriate in-depth entry interviews are still being conducted; and children are often made to undergo important assessment interviews despite being ill, hungry, tired, and scared.
A new concern was raised though – that unaccompanied children who had arrived in the UK’s jurisdiction but did not register a claim for asylum were being immediately returned to France under the UKBA’s "gentleman’s agreement", without a "best interests" determination or proper assessment of their protection needs.
The research found evidence of seven Vietnamese children being returned under this agreement, in what was described as a "significant failure" of child protection. While the process has since ended after being brought to the attention of the chief executive of the UKBA, Rob Whiteman, its use raises worrying questions about the continued distinction between children subject to immigration control and all other children in need in the UK.
Clear and comprehensive assessment
Interpreting article 3(1) in relation to unaccompanied and separated children, the Committee on the Rights of the Child, in its general comment no. 6, states that the determination of what is in the best interests of the children "requires a clear and comprehensive assessment of the child’s identity, including her or his nationality, upbringing, ethnic, cultural and linguistic background, particular vulnerabilities and protection needs". Of course, "allowing the child access to the territory is a prerequisite to this initial assessment process".
Yet, even once on UK soil and in the asylum process, many children are still denied the protection they need. Less than 10 per cent a year are granted asylum and the UK government continues to explore opportunities for forcibly removing children to Afghanistan in order to discourage them from "making dangerous journeys" in the first place.
This involves teaming up with Sweden, Norway and the Netherlands to create the European Return Platform for Unaccompanied Minors, under which it expects to start repatriations of 16- and 17-year-olds to Kabul this year. In the context of the continuing armed conflict in Afghanistan and the wealth of objective evidence about the problems faced by all children in that country, it is very difficult to see how forcible return to this situation could in any way be found to be in a child’s best interests.
Unfortunately, the picture given as we start 2012 is one of a government that still clearly prioritises immigration control over children’s rights, focusing on either deterring children from fleeing to the UK, or sending them straight back if they do make it. There is a long way to go before it can realistically claim that every child matters.