The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) removed legal aid for matters including immigration, nationality and EU issues. This had a negative impact on many children in the UK, as well as separated children in care who were not unaccompanied asylum-seeking children (UASC).
However, in July 2018, the government announced that legal aid would be brought back into scope for "immigration matters". As of August 2019, this has yet to be enacted and is currently going through parliamentary procedure. It is expected that it will come into force around September/October 2019, but this may be subject to change.
When this change occurs, separated children in care should be able to get legal aid for issues such as immigration applications, EU applications, citizenship registrations and other matters. This is undoubtedly good news, as children in care will often have complex issues that need a good legal representative to advise and represent on. There are also particular rules for children in care, including in nationality applications and immigration routes that will need specialist advice.
While waiting for the changes to occur, interim measures are in place and children in care can apply for exceptional case funding (the safety net to provide legal aid funding where it would otherwise risk a breach of someone's human rights/of EU law). There is a presumption that unaccompanied and separated migrant children require legal aid and exceptional case funding applications currently do not require detailed evidence. Further information and guidance can be found on www.childrenslegalcentre.com.
It is also important that care leavers obtain legal advice if there is uncertainty over their immigration status. Legal aid is not being brought back for care leavers but the young person should be supported to obtain immigration advice if and when they need it. They can also apply for exceptional case funding.
POINTS FOR PRACTICE
- Consider whether children and care leavers in your care may need immigration, nationality or EU advice
- Ensure that those children and care leavers obtain advice and representation where required as a matter of urgency (particularly where children are close to turning 18 at which point some of their rights under the immigration rules can become more prohibitive as adults)
- Ensure that children and care leavers continue to get advice where needed, particularly where they have limited or no immigration status or there is a change in circumstances
EU Settlement Scheme
The EU Settlement Scheme (EUSS) has been running since 30 March. This has continued despite the ongoing uncertainty over the UK leaving the EU. Deadlines and timescales for the EUSS will depend on when the UK leaves the EU and whether or not a deal is reached.
Please note that, for ease of reference, we are using the terms EU and EU citizens, but these terms will also cover rights of citizens of EEA and Switzerland unless specifically stated otherwise in this article.
EU nationals will need to make an application under the EUSS and will receive either settled (indefinite leave to remain) or pre-settled (limited leave to remain) status. Status is dependent on residence in the UK - five years or more will lead to settled status, anything less will be pre-settled status. The procedure is more straightforward than an asylum claim or immigration application, although there may be complications for certain groups and for most children in care with EU rights. The Home Office estimates that there are around 5,000 EU children in care - however there may be more who are not EU nationals but have EU rights through family members.
The UK government and the OISC (the immigration advice regulator) have issued guidance to local authorities and stated that local authorities do not have to be regulated to make an EUSS application on behalf of the child if they are under a care order giving the local authority parental responsibility.
However, many children in care with EU rights will need more complex advice - including on making a citizenship application, advice on their family EU rights or advice on any criminality, suitability and evidence issues. Care leavers with EU rights will also need advice about making such an application.
For children in care with EU rights, there may also be issues in obtaining their national passport or ID (particularly if parents are not engaging) and evidencing residence in the UK. The EUSS mainly checks residence through Department for Work and Pensions and HMRC records so alternative evidence will often need to be submitted. This can include a letter from social services confirming how long the child has been in care.
There are organisations funded to assist individuals with EUSS applications and a list of these organisations is available on the government website.