Legal Update: Rights of migrant care leavers

The theme for this week's National Care Leavers' Week - "New Belongings" - encourages us to think what it might be like to be a care leaver starting out, alone and scared, into a world in which they don't feel they belong. Young refugees and migrants can feel particularly confused and abandoned at this time, not just because of their transition from children's services, but because many of them are waiting for the outcome of an asylum application or an application to extend their leave to remain. Without permanent immigration status they face an uncertain future and mental health problems that may have been under control while there was some security in their lives may re-emerge. Having previously struggled to come to terms with displacement and loss, some young people now have to deal with the possibility that they will be returned to a country from which they fled.

To worsen matters, Schedule 3 of the Nationality, Immigration and Asylum Act 2002 allows local authorities to withdraw support from care leavers who are "unlawfully in the UK" on the basis of their immigration status. Many young people who arrived as children and claimed asylum may find themselves "unlawfully in the UK" after their temporary permission to stay in the UK is not extended.

Young people who are "end of line" - who have exhausted their appeal rights - will have had previous asylum or immigration applications decided by the Home Office or the tribunal/courts but often these applications have not been properly considered due to poor-quality legal representation, poor-quality Home Office decision making, a lack of adherence to guidance by Home Office decision makers, and a "culture of disbelief" within the Home Office.

This is why many young people from places like Afghanistan, Iran, Somalia and Eritrea, who have fled war, persecution or exploitation, find themselves at 18 without status, liable to be detained and forcibly removed from the UK. Barriers preventing their return to their country of origin - such as a failure of the country to co-operate or provide travel documents - means that many young people are not removed but instead remain in the UK living in limbo.

Confusion over "end of line" cases

Local authority practice with regard to the support that they provide to these "end of line" cases is inconsistent, in part due to confusion as to how to deal with such cases, along with financial constraints. Some may continue to provide minimal support rather than a complete withdrawal; others will not withdraw support immediately but will apply their own cut-off point, such as turning 21, or leaving education.

However the choice to continue support is at the local authority's own expense and risk, as they are no longer reimbursed by the Home Office for this as they would be for under-18s. This issue has recently been highlighted by Kent Council, which has made clear it believes it has a legal obligation to support "appeal rights exhausted" care leavers but argued that it costs them £2m annually to do so owing to "conflicting legislation".

There has been strong criticism from NGOs, the Joint Committee on Human Rights and the Office of the Children's Commissioner for England about the way Schedule 3 impacts on care leavers. There is no evidence to support the policy of using forced destitution as a means of encouraging people to leave voluntarily.

Withdrawing young people's support simply drives them "underground" at a time when they most need help. As a result, many may face homelessness, destitution and forced criminality; many resort to illegal working to survive and are highly vulnerable to exploitation. It is vital that refugee and migrant young people who have been in the care of children's services are properly supported during the transition to adulthood, just as all care-leavers should be, and made to feel like they belong in the UK.

Legal Update is produced in association with experts at Coram Children’s Legal Centre
www.childrenslegalcentre.com

For free legal advice on issues relating to migrant children call 0207 636 8505

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