Legal Update: Transferring asylum-seeking children
Tuesday, April 24, 2018
Kamena Dorling, head of policy and public affairs at Coram Children's Legal Centre, examines new guidance for the National Transfer Scheme for transferring asylum-seeking children in the UK.
A recent report from the Independent Chief Inspector of Borders and Immigration looked at the Home Office's handling of unaccompanied asylum-seeking children, and gave particular focus to how the best interests of those children are upheld when they are transferred from one local authority area to another under the National Transfer Scheme (NTS). The Inspector highlighted the importance of keeping NTS transfers under review and the need for the consideration of the child's "best interests" to be dynamic throughout the transfer process. The report also highlighted the importance of ensuring that throughout the process the child's voice is heard and heeded.
Before July 2016, responsibility for accommodating and caring for an unaccompanied asylum-seeking child in England fell to the local authority in whose area the child first presented. In 2016, in recognition of the increased number of unaccompanied asylum-seeking children arriving in certain "entry" points to the UK, such as Kent and Hillingdon, the Home Office, Department for Education, and Department for Housing, Communities and Local Government launched the NTS. The aim of the NTS was to ensure that responsibility for caring for unaccompanied asylum-seeking children is more evenly distributed among local authorities.
An "Interim National Transfer Protocol" was published on 1 July 2016. Following consultation with local authorities and other stakeholders, a new version was published in March 2018. The protocol forms the basis of a voluntary agreement made between local authorities in England, based on the principle that no local authority's number of unaccompanied asylum-seeking children should constitute more than 0.07 per cent of its total care population (based on the Office for National Statistics' 2016 mid-year population estimates).
The updated protocol provides guidance and good practice notes for social workers on how to make a decision on whether to refer the child to the NTS and factors to be taken into account when assessing the child's best interests. Where an unaccompanied child first presents in a participating local authority which is over the 0.07 per cent threshold, the local authority may arrange for the transfer of the child, unless there are clear reasons why transfer would not be in the best interests of the child. For example, a child may enter the UK under the Dublin Regulation and while their relatives in the area might be unable to care for them it would still be in their best interests to remain near their family. In addition, where children are settled and established in a local authority area, that local authority may decide that it is not in the best interests of the child for them to be moved. In this case the child should stay in that local authority area. Between 1 July 2016 and 1 October 2017, 555 transfers were completed under the NTS.
Crucially, the protocol reinforces the importance of the decision to refer the child to the NTS being reviewed at regular intervals by the local authority to ensure that the initial decision to transfer the child remains in that child's best interest.
Originally, the NTS operated in England only, but section 73 of the Immigration Act 2016 enables the Secretary of State to make regulations to extend any provisions made by sections 69 to 72 to Wales, Scotland and Northern Ireland. In December 2017, secondary legislation was introduced under the Immigration Act 2016 to extend the scheme to the whole of the UK. The aim is to work towards an approach that would allow unaccompanied children to transfer between authorities in any area of the UK and it is not envisaged that the process should differ substantially to that which is set out in this transfer protocol. That said, separate transfer protocols will still need to be developed for the devolved nations.
POINTS FOR PRACTICE
Any decision to transfer an unaccompanied asylum-seeking child via the National Transfer Scheme must take in to account the child's best interests and consider a range of factors such as access to medical treatment, family ties, legal representation and advocacy, education, ethnic group, religion and continuity of care. The decision to refer must be regularly reviewed. Factors indicating it may be appropriate to withdraw the referral include:
- The child subsequently disclosed that they have relatives in the area
- The child developing connections with the local community or local services or treatment which it would be detrimental to leave
- The child expressing a strong wish to stay despite being adequately prepared for transfer
- Recommendations from other professionals that the child should not now be transferred.