Legal Update: Immigration Bill and care leavers

Stewart Maclachlan
Tuesday, December 8, 2015

Stewart Maclachlan, legal and policy officer at Coram Children's Legal Centre, examines proposals in the Immigration Bill that would have a detrimental effect on young care leavers with immigration issues.

Care leavers with immigration issues face being denied support and assistance that is usually available to their peers. Picture: Shutterstock
Care leavers with immigration issues face being denied support and assistance that is usually available to their peers. Picture: Shutterstock

Over recent weeks, non-governmental organisations have raised concerns regarding the Immigration Bill and its implications for the welfare and safeguarding of children and young people. One particular cause for concern are the recent changes to the bill introduced by the government that aim to reform the provision of local authority support to care leavers with no regular immigration status.

Support for care leavers

The Children Act 1989, the principal legislation for child welfare, makes specific provision for all children leaving care, in recognition of their additional vulnerabilities and need for support. The local authority's duty as the corporate parent recognises the legacy of the parental role and allows the local authority to step in and protect a care leaver where necessary. However, Schedule 3 of the Nationality, Immigration and Asylum Act 2002 excludes various categories of migrants from local authority support and provisions in the Immigration Bill seek to further exclude young people subject to immigration control from leaving care support. These provisions outline that care leavers with no immigration status (including those who arrived as children and sought asylum and were granted "limited leave as an unaccompanied asylum-seeking child" and those who came to the UK at a very young age but were never helped to regularise their status) will only be able to access accommodation and/or financial assistance and only in the following circumstances:

  • If the young person is destitute and has been refused asylum and is eligible for the general support provided by the Home Office to refused asylum seekers when there is a "genuine obstacle to leaving the UK";
  • If the young person is destitute and has a pending non-asylum immigration application or appeal; or
  • If the young person's appeal rights are exhausted (in limited circumstances).

Those affected would not receive the additional support usually provided to care leavers, including allowing them to remain in their existing foster placement while they make the transition to adulthood; the allocation of a personal adviser to provide advice and support; and assistance with meeting their educational and training needs.

This undermines, among other things, the government's "Staying Put" initiative, which explicitly recognises the need for care leavers to have "stable and secure homes" and to be given "sufficient time to prepare for life after care".

Risk to young care leavers

Migrant young people in care often face additional difficulties, from language and cultural barriers to significant trauma and lack of any family contact. Care leavers with immigration issues often need their personal adviser or advocate to help with everything from assisting with accessing support and attending appointments to identifying an immigration lawyer.

There can be many reasons why a young care leaver's status has not been regularised and it can often be due to circumstances outside of their control, whether due to decisions of their parents, lack of access to proper advice or having been trafficked into the UK.

Removing support from young people leaving care on the basis of their immigration status is not only discriminatory, it will lead to vulnerable young people having very limited access to effective support or assessment of their needs. It is also unlikely to increase the likelihood of such a young person returning to their country of origin - in fact it is more likely to lead to them going underground, with the consequent risk of exploitation or destitution.

The government has argued that these young people are simply "adult migrants" who will not remain in the UK in the long run and therefore should not receive additional help. Not only is this not the case for many of the young people affected but long-established law and policy makes clear that all those who have been in care need additional support on turning 18 in light of their vulnerabilities. Central and local government have a unique relationship with children in care and care leavers as their "corporate parents" and as such care leavers should expect the same level of support that other young people get from their parents. It is vital that migrant care leavers can access this like any other group of young people as they have no-one else to turn to.

It is hoped that these provisions will be amended as the bill passes through the Commons and then the House of Lords. If not, they risk creating a two-tier system of leaving care support, preventing local authorities from assisting young care leavers in any meaningful way and raising serious concerns regarding the welfare of those affected by the loss of such vital support.

Legal Update is produced in association with experts at Coram Children’s Legal Centre ?

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