Following a successful legal challenge, the government amended the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), bringing all non-asylum immigration and citizenship matters for separated children back into the scope of legal aid in October 2019. This followed years of campaigning by charities and others, but the impact of the change relies on those working with these children understanding the implications and taking action.
Immigration legal aid is now available to all children under 18, including those whose age has been disputed by children’s services, who are not being cared for by a parent or by a person with parental responsibility for them or who are looked after as defined by section 22 of the Children Act 1989. This includes, for example, unaccompanied children who are in care or receiving section 20 support from a local authority. It also covers children who are in kinship care, those in private fostering arrangements, children who have been reunited with family members under Dublin III transfers, and other informal arrangements, including “where a child is caring for themselves”.
Immigration and nationality cases
Legal aid is available for an application for leave to enter or leave to remain in the United Kingdom (whether under or outside of the immigration rules) and citizenship applications. This includes, for example, applications based on long residence and a child’s rights under Article 8 of the European Convention on Human Rights (ECHR), applications for registration under the British Nationality Act 1981, family reunion advice and support, trafficking cases including pre-National Referral Mechanism (NRM) advice and support (if advice is being given regarding a leave to remain application). It also includes support for children who may be stateless and who need advice, support and representation to access the statelessness procedure. It includes support to children who are requesting a transfer to the UK under EU and UK law.
Applications made by children to the EU settlement scheme will also be eligible for legal aid. Though the scheme is designed to be straightforward, there will be many looked-after children whose cases are complex because, for example, they may face problems with obtaining documentary evidence, may engage the suitability thresholds or may already be British and need nationality advice.
Support is also available for so-called “mixed cases”, involving both asylum and immigration matters. For example, an unaccompanied asylum-seeking child who was granted limited leave as an unaccompanied asylum-seeking child until they turned 17 ½ may need to raise both protection concerns and arguments based on their Article 8 rights when applying to extend (“vary”) their leave. This could be the case where, for example, children have spent long periods of time in the UK, or have particular needs as a result of trauma, health problems, disability or being a looked-after child. Legal aid will be available both for the application and any representation at appeals that engage other non-asylum grounds. This should allow legal aid lawyers to provide comprehensive support to children, not limited to the asylum grounds in their case. A legal representative should consider whether further work could be carried out in relation to evidencing the child’s private and family life in the UK, ability to comply with any aspect of the immigration rules or the potential to register as British.
An unaccompanied or separated child with unresolved immigration issues should be assisted, usually by their social worker, to find a solicitor as soon as possible once they have been identified. For children who are 16 or 17, immigration advice should be considered as part of the Pathway Plan. It is important that children get legal advice as soon as possible in this scenario, as the immigration process can take a long time and their position may be prejudiced by delay or by a change in circumstances (such as turning 18). For example, some applications may not be open to them at the age of 18, there may be more onerous requirements, or a delay may lead to gaps in their immigration history which could cause serious problems later in their lives.
POINTS FOR PRACTICE
- Separated migrant children are now eligible for legal aid for civil legal services in relation to immigration applications for entry clearance, leave to enter, or to remain in, the UK, and applications for registration as a British citizen.
- These children should be assisted in finding legal representation and should be accompanied to the first appointment.
- Those providing immigration and asylum legal services to child clients under a legal aid contract from the Legal Aid Agency must be accredited at Level 2 within a scheme called the Immigration and Asylum Accreditation Scheme, operated by the Law Society. Those providing advice/assistance to children must have enhanced DBS checks.
For more information, visit www.childrenslegalcentre.com/legal-aid-for-separated-children-guidance/