Legal Update: Care of unaccompanied children
Rachel Hutchings
Monday, April 14, 2014
Draft proposals on the care of unaccompanied asylum-seeking and trafficked children are a welcome step but could go further, argues Rachel Hutchings, researcher at Coram Children's Legal Centre.
On 28 January, the Department for Education published a consultation on draft regulations and statutory guidance for local authorities on the care of unaccompanied asylum-seeking and trafficked children. In the consultation, which closed on 25 March, the DfE sought views on the proposed regulations and guidance, particularly on the question of whether the proposed measures would help local authorities to plan and care for unaccompanied and trafficked children.
Coram Children's Legal Centre has long been calling for attention to be paid to the particular needs of both unaccompanied asylum-seeking children and children who are victims of trafficking. A local authority's duties to looked-after children under the Children Act 1989 apply equally to all children, irrespective of immigration status, but these children often have additional, complex needs. The proposed regulations and guidance are a welcome step in recognising these particular needs.
Resolving immigration issues
The regulations will require that a child's status as an unaccompanied or trafficked child be recorded in their care plan and considered in the assessment of their needs and review of their case, including in pathway planning for care leavers.
It is very important that a looked-after child's immigration status is noted and that they are supported to resolve their immigration issues within the care planning process and are referred to a specialist immigration solicitor for legal representation.
Coram Children's Legal Centre and other respondents to the consultation stressed that the regulations and guidance should not be limited to unaccompanied children seeking asylum and victims of trafficking, but should refer to the wider group of children that have needs arising from their immigration status. The changes will hopefully ensure that immigration issues are no longer overlooked in the care planning process, and this is important for all children with immigration issues. Indeed, it is often children in the care system with non-asylum cases whose immigration status issues are unidentified or overlooked, such as children who were born in the UK or brought to the UK at an early age and for whom no applications have been made to regularise their status, with an assumption sometimes being made that they are British citizens when in fact they are not.
Distinct needs
The draft guidance, while it may be helpful, is fairly general and does not sufficiently distinguish the steps to be taken in cases of unaccompanied asylum-seeking children from those to be taken in cases of child victims of trafficking.
Although some children may be both, this is not always the case and different action may be required depending on the circumstances and needs of the child.
In its treatment of transition to adulthood, the draft guidance is heavily focused on the possibility of the young person not being granted leave and considering return to their country of origin.
The guidance reads as if this is always the outcome, and pays less attention to other possible outcomes, such as a grant of leave, or the need for legal advice about making a fresh asylum or human rights claim.
While the issue of possible return can be very difficult and guidance on this area is likely to be welcomed, it is also important that care leavers are supported to explore whether they have legal rights to remain in the UK. No assumptions should be made as each case will turn on the individual circumstances.
Overall, the publication of new guidance and regulations will be a welcome step forward, but they could go further in ensuring the protection of all children with immigration issues in the care of local authorities.