The Treatment of Children under the UK Asylum system - Children First and Foremost?

L. M. Clements, B.A, LL.M.

Lecturer in Law, the University of Hull.

l.m.clements@hull.ac.uk

Copyright © L.M. Clements 2006 . First published in Web Journal of Current Legal Issues.

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Summary

This Article critically examines the treatment of children of asylum seekers and asylum seeking children entering the UK. The Article outlines UK asylum law, practice and policy in relation to children and explores in particular the relationship between legislation on Children and current UK Asylum law. A number of human rights issues which arise in this context are explored and the question of whether a human rights perspective has more to offer as a basis for critique than an approach based on the “best interests of the child” principle is also examined in some detail. The author concludes that the Government may be breaching some of its human rights obligation under International Law in the way in which it approaches children and asylum issues and that it needs to review both current law and policy in this area. A number of suggestions are made, including that a specially appointed Asylum Guardian for asylum seeking children be considered by the Government. Finally, the Article considers the most recent legislation to have an impact on the family life of asylum seekers, the Asylum and Immigration (Treatment of Claimants ) Act, 2004 and the human rights issues which this legislation raises.

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Contents

Bibliography

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Introduction

Children seeking asylum and children of asylum seekers who arrive in the UK are often fleeing from the ravages of war, abuse, trafficking or exploitation.(Buxton, 2003). They may be traumatised by their experiences before coming to the UK and arrive seeking protection within our borders from the adverse circumstances from which they have fled. These children are no different from any other child in the UK in terms of their physical and psychological needs, although they may have special problems arising from their background circumstances. It should be remembered that these young asylum seekers are really children first and foremost and refugees only second; and, from a human rights point of view, such children should be afforded the same protection and rights as any other child in the UK. However, as indicated below, UK law does not give the same rights and protections to an asylum seeking child or child of an asylum seeker as domestic law gives to UK children.

The UN Convention on the Rights of the Child, 1989, (UNCRC) provides a benchmark against which the treatment of asylum seeking children and children of asylum seekers in the UK may be judged. It is supposed to represent a milestone for the protection of children’s rights, providing welfare principles (namely “the best interests of the child,” see Article 3) against which the actions of States who have ratified the Convention may be judged. It should also be noted that in the context of the European Union, of which the UK is a member, Article 24 of the Charter of Fundamental Rights likewise provides a duty to promote the best interests of the child.

According to the all-important Article 22 of the UNCRC in this context, special protection should be afforded to “refugee children”. Children in general are also granted, under the same Convention, the right to life, physical integrity, adequate food and medical care, education and freedom from any form of discrimination, abuse or exploitation. If a refugee child is not being looked after by its parent(s), the UNCRC grants further protection to the child, whilst Article 38 of the UNCRC provides special protection if the refugee child is fleeing from a war. The UN Committee on the Rights of the Child has often claimed that when a State ratifies the Convention, it is committed to protecting all children within its jurisdiction without exercising any discrimination.(1) However, in 1991, when the UK Government ratified the UN Convention on the Rights of the Child, it made certain important reservations, notably from Article 22 of the Convention, enabling the rights under the Convention to be departed from in the context of its immigration and asylum policy, thus permitting, inter alia, the detention of children with adults when deemed necessary. As a result, children involved in asylum claims in the UK are not guaranteed the same rights as other children in this country. Can the position taken by the UK in this context be justified? If not, what grounds can be put forward for criticising UK law and policy in this area? This article will explore how children are being treated under UK asylum law, policy and practice and question whether the UK is honouring its Human Rights obligations to children involved in asylum proceedings.

Who Is An Asylum -Seeking Child Or Child Of An Asylum Seeker?

The term “asylum seeker” is generally applied to a person who has left their country of origin in order to move to another country to seek protection, but, in the UK, “asylum seeker” has an official meaning. A person is referred to as an asylum seeker in the UK only if he/she has lodged a claim for asylum with the Home Office and is still waiting to see if that claim will be granted (Nationality, Immigration and Asylum Act, 2002, Schedule 3, paragraph 17(1)). Once officially allowed to stay, an asylum seeker becomes a “refugee;” if their case is turned down, however, the person is referred to as a “failed asylum - seeker.” The UN Convention on the Status of Refugees,(the Geneva Convention, 1951), however, defines a "refugee" as a person who has fled their country of origin to a foreign country due to a well-founded fear of persecution. It is important to be aware of these differences in definition when considering the position of child refugees/asylum - seekers in the UK.

In the context of children, asylum - seeking children in the UK fall into two different groups:

Unaccompanied asylum - seeking children are people aged under 18 years who are applying for asylum in his/ her own right and who arrive either alone or with someone who is not their usual carer. Accompanied asylum -seeking children are defined accordingly.

In 2001, almost 3,500 unaccompanied asylum - seeking children arrived in the UK; these were mainly aged 16 or 17, were mostly male and the majority came from areas of conflict or where serious abuses of human rights occur, such as Somalia, Iraq and Afghanistan. (“Working with unaccompanied asylum-seeking children at ports”, 2002). In 2002, there was a sharp rise in unaccompanied children seeking asylum to 6,200, but by 2003, this figure had halved (see references to statistics on Asylum -Seeking and Refugee Children in Schools, 2003, Multiverse, exploring diversity and achievement, 18/6/2004). However, by April, 2004, the figure had started to increase again. (Home Office, 2004, for the period April to June, 2004; Heath (2004)).  The former downward trend might have been partly due to the fact that the Home Office may dispute the applicant’s age, and reclassify the child as an adult. Where age is in dispute (referred to as a “disputed minor” case), the policy of the Immigration and Nationality Directorate (IND) has been to treat the applicant as an adult if their appearance suggests that they are over 18 years of age and then to offer NASS support, where appropriate, until age has been satisfactorily demonstrated. (Policy Bulletin 33, 2000).

If the relevant Social Services Department has disagreed with the IND’s own assessment on age, the IND has normally accepted the Social Services Department’s judgment. However, according to R(B) v London Borough of Merton, [2003] EWCA 1689; [2003] 4 All ER 280, there must be no tendency to assume that the applicant is an adult, or, conversely, that he/she is a child. Hence, social services departments cannot just adopt the decision of the Home Office; instead, each social services department has to decide for itself whether the applicant is indeed a child. The assessment of age in borderline cases may be a difficult matter, but it may be determined informally, so long as there are safeguards in place and the minimum standards of inquiry and fairness are maintained. Unless the case is a clear one, a young applicant’s age may not be determined merely on the basis of their appearance. Instead, those entrusted with taking a decision where the outcome is dependant on age must seek to elicit the general background of the applicant. This includes their family circumstances and history, educational background and any relevant ethnical and cultural information which may be available. Where there is reason to doubt the applicant’s stated age, an assessment of credibility of the applicant should then be made by the local authority, using questions specifically designed to test credibility. When a local authority makes a decision that an applicant, who claims to be a child, is not a child, that authority has to give adequate reasons for its decision; the applicant will then be in a position to consider whether to ask for that decision to be legally challenged or reviewed under ordinary administrative law principles.

Detention of Children

“Disputed minors” who are treated as adults on the assumption that they are adults are subject to detention, like any adult asylum - seeker. Whilst it is the government’s policy not to detain an unaccompanied child, there are no legal safeguards to prevent this from occurring. Children applying for asylum in their own right and accepted as minors are not normally subject to detention, except in exceptional circumstances, (such as when they arrive in the UK “out of hours,” too late to be handed over immediately to social services), when they may have to be detained overnight or for up to 24 hours. Children of asylum seekers, however, may be detained along with the rest of their family who are applying for asylum and may therefore be sent to an immigration removal (formerly called “detention”) centre. Between 1994 and 2001, approximately 220 children had been placed in an asylum detention centre. Until October 2001, government policy was to detain families with children only for a few days immediately prior to removal from the UK (Crafti and Kneebone, 2002).

In 2001 the government changed its policy, stating that asylum seekers with families would be subject to detention on the same basis as any other asylum seeker and that this would include on arrival as well as on removal (“Seeking asylum is not a crime: detention of people who have sought asylum”, 2005). This change of policy was based on a ministerial decision, which was not backed up by any evidence that such families were likely to abscond if not detained. Children may therefore find themselves being detained for a period of up to 4 months whilst the family’s application for asylum and any appeal is being heard. In April 2005, two of the above-mentioned Centres in particular were subject to criticism in connection with the provision of care for children in their accommodation. One of these centres, Tinsley House, near Gatwick Airport, was found by Anne Owers, the Chief Inspector of Prisons, to be “seriously deficient” in relation to child protection measures, (Report on an announced inspection of Tinsley House Immigration Removal Centre, 2005), whilst the other, Dungavel, in Scotland, was found to have failed to implement earlier recommendations of the 2002 Report of the Scottish Parliamentary visit, on child welfare and development (Report on an unannounced inspection of Dungavel House Immigration Removal Centre 14 - 16 December 2004 by HM Chief Inspector of Prisons, 2005).

As mentioned earlier, the UN Convention on the Rights of the Child ( UNCRC ) requires that “ the best interests of the child” be the guiding principle in executive and judicial decisions and actions; and, in Article 37, the UNCRC states that detention of children should only be used “as a measure of last resort and for the shortest period of time”. The UK Government’s Reservation on nationality, immigration and asylum matters from this Convention, however, has enabled it to detain children against “the best interests of the child” principle. The organisation, “Save the Children” has been given legal advice to the effect that this situation is unjustifiable:

 “It is inconceivable that the best interests principle could contemplate even the short term detention of child asylum seekers for administrative convenience whilst their protection claims are being processed.”  (http://www.publications.parliament.uk/pa/jt200102/jtselect/jtrights/132/13217.htm )

In a similar way, the UN Committee on the Rights of the Child has claimed that the UK’s Reservation does not appear to be in line with the UN Convention on the Rights of the Child ( UNCRC ); in particular, it is claimed that, in relation to the treatment of children, “the best interests of the child” principle is not being fully adhered to by UK asylum law and practice. (United Nations Committee on the Rights of the Child Report, 2002).  Likewise, the Refugee Children’s Consortium has suggested that the UK detention policy relating to asylum seeking families appears to breach 15 Articles of the UNCRC. The guidelines issued by the UN High Commission for Refugees ( UNHCR ) also state that children involved in asylum claims should never be locked up, nor should they be forcibly removed.

It is suggested that, unless the separation of a child from its parent(s) can be justified on the grounds of “the best interests of the child,” it is unacceptable to do so; it is generally recognised as being in the child’s best interests to remain with the family, wherever possible. Unless there is a danger to the child’s physical or mental health, then, as a general principle, the child should remain with one or both of its parents. This is especially important when the child is very young and/or still being breastfed, where separation from the mother may do damage to the well-being of both mother and child. However, detaining the child merely in order to avoid separation from its parents is equally unacceptable; other means of dealing with the situation should be used instead in such cases. Detention, as a general principle, it is suggested, should only be used as a last resort in asylum cases, for the shortest possible period and after all other feasible options have been considered. It appears to be generally agreed amongst commentators in this area that detention should not be used in the case where those concerned are vulnerable; and certainly not against children, where it can never be in their best interests to be detained. (See “Child detention regulation urged”, http://news.bbc.co.uk/1/hi/uk/4302775.stm). Where children are part of an asylum seeker’s family, the family itself should not be detained in a Detention/Removal Centre, but should be accommodated in some other way, even if restrictions on movement and regular reporting are considered as being necessary.

The Accommodation and Other Support of Children Under Asylum and Child Law

Unaccompanied children who have no informal (private) care arrangements and who are assessed by a social services department to be in need are cared for by a social services department under the provisions of the Children Act 1989.

A social services department has two options available to it. After an assessment, the child may be “looked after” or “accommodated” under the provisions of section 20 of the Children Act 1989. A “looked-after” child is entitled to have a named social worker and is also entitled to things such as a care plan, an independent visitor and some continued support post leaving care. Alternatively, a child or young person may be “supported” under the provisions of section 17 of the Children Act 1989. The social services department assesses the child’s needs before concluding whether or not that child requires its support services. If it concludes that the child is “in need” of support, the social services department may decide, under section 17, to place the child with relatives, with foster carers, in a residential home, in supported local authority accommodation or in a hostel. Where a child is provided with accommodation under section 17, he/she is not classed as “looked after” for the purposes of the Children (Leaving Care) Act, 2000.

Section 17 of the Children Act, mentioned above, sets out the general duties towards a child “in need” by imposing a duty on the local authority to safeguard and promote the welfare of those children in its area who are in need. The local authority is under a duty to promote the upbringing of children by providing a range and level of services suited to the needs of those children. This may also include providing accommodation for the family of the child, assistance in kind and, in exceptional circumstances, assistance in cash (see amendment to section 17(6) of the Children Act, 1989 made by section 116 of the Adoption and Children Act, 2000, which came into force on November 7,^th 2002). Local authorities may arrange for some other organisation to provide the services mentioned previously, but the responsibility still remains that of the Local Authority. In contrast, Section 20 of the same Act imposes a duty on the local authority to “look after” a child in need. This may involve providing accommodation to a child in its area who is in need as a result of there either being no one with parental responsibility, no one able to provide suitable accommodation for the child or because the child has been lost or abandoned. In providing for such children, the Local Authority has to safeguard the welfare of the child and try to keep siblings together. Section 20 also provides that a Local Authority should maintain a service for those leaving care.

Under the Children (Leaving Care) Act, 2000, a person who was, before attaining 18 years of age, a child being “looked after” by the local authority under the Children Act, 1989, (either as an “eligible child” or as a “relevant child”) is classed as a “former relevant child” and is entitled to certain types of continued assistance from the local authority; in particular, advice and assistance in relation to employment, education and training until the age of 21 years. In some cases, this responsibility extends even beyond the age of twenty-one years. The purpose of the 2000 Act is to assist those young people who are moving from care to establish an independent living. It aims to achieve this by amending the Children Act, 1989, placing a duty on local authorities to assess the needs of this category of person and to meet those needs.

Until 2003, when the Department of Health issued Local Government Circular LAC (2003) 13, most unaccompanied child asylum seekers were given support under section 17 of the Children Act, 1989. The 2003 Circular, however, stated that, as a matter of policy, unaccompanied children with no parent or guardian in the UK should be supported instead under section 20 of the 1989 Act:-

“where a child has no parent or guardian in this country,…..the presumption should be that he would fall within the scope of section 20 ( of the Children Act, 1989 ) and become looked after, unless the needs assessment reveals particular factors which would suggest that an alternative response would be more appropriate. While the needs assessment is being carried out, he should be cared for under section 20.” ( Local Government Circular LAC (2003) 13)

The 2003 Circular adds that if an older child does not wish to be “looked after” under Section 20, then the local authority concerned might decide, after taking into account the child’s wishes, that that child is able, with the help of section 17 support, to look after him/herself. The Circular was issued around the time of the Hillingdon judgement, R (Berhe) v Hillingdon London Borough, [2004] 1 FLR 439, which was thought to have brought further clarity to an area that had previously suffered from some confusion. However, in January, 2005, a report by the Refugee Council, surveying 19 local authorities, indicated a disparity of responses by these authorities to the guidance provided by the 2003 Circular, thus suggesting a continued lack of consistency of approach towards unaccompanied asylum seeking children (Dennis, 2005). A further report in 2005 from Save the Children, building on the work done by the Refugee Council, echoed similar criticisms of the way in which local authority support to unaccompanied asylum-seeking children is being provided in practice (Free, 2005). Between November 2004 and May 2005 Save the Children contacted 18 representative local authorities in England and carried out detailed interviews concerning their responses to the Hillingdon Judgment and the 2003 LA Circular 13. It was found that, out of the 18 authorities involved, one had been providing section 20 support to young unaccompanied asylum - seekers on arrival in the UK even before 2003, 11 had made the change to providing Section 20 support since 2003, whilst the other 6 were still not providing Section 20 support in this situation. As regards the longer term support of such young people, most of the 12 LAs mentioned above continued to provide the more extensive Section 20 support after an assessment of the individual case had been made.

This transfer of support from section 17 to section 20 has undoubtedly put extra pressure on local authorities, but at the same time it is not a guarantee that the standards of care that each young person now receives is any higher than before. Clearly, resources are an issue here and some local authorities interviewed for the Save the Children report expressed concerns about the level of support which they were in practice able to offer under section 20. These concerns included the difficulty in providing social workers for all UASCs, not having personal education plans for all such young people and the quality and level of support being provided by some of the semi-independent contractors who provide accommodation in some local authority areas to UASCs. More importantly, young UASCs who should be transferred to the leaving care services team were not always transferred at the right stage because of resource difficulties. In all, the report presented a mixed picture of how those local authorities involved had responded to the Hillingdon Judgment and LAC 13. Whilst there were many positive signs, there were also concerns expressed by the local authorities themselves about the support which they were able to provide to UASCs. Barriers to change centred on five main areas, the most important of which were funding, conflicting government policy and the difficulties encountered working with other statutory providers. Funding problems were a very significant barrier encountered to providing UASCs with the right kind of support and this problem related not just to the level of funding but also to administration of that funding. Conflicting policies emanating from the Home Office and the Department for Education and Skills (DfES), to which responsibility for UASCs was transferred from the Department of Health in 2003, however, are also a problem. A lack of joined-up thinking and co-ordination between the Home Office and the DfES has resulted in “mixed messages” and “conflicting agendas.” The ongoing problem which those working for social services perceive is that there appears to be a policy vacuum in this area: Are UASCs to be treated as children, with the Children Act, 1989, being paramount or are they to be considered as migrants, with priority being given instead to immigration and asylum laws?

An example of the sort of mixed message referred to above can be seen in the way in which the Home Office and the DfES approach the question of support to 16 and 17 year old UASCs. Circular 13 places emphasis on a thorough needs assessment of each individual case, which usually means providing section 20 support to most children in this age-band, but funding from the Home Office is half that for this age-band as compared to that available for the under 16 year old category. The end result is often that, whilst the local authority ought to be providing support to the 16 plus UASCs under Section 20 of the Children Act, 1989, there is insufficient funding available to do so.

Even within the DfES there are conflicting polices at work, which cause difficulties for local authorities. An example of this can be seen in the way in which the DfES excludes many young UASCs from having access to certain forms of funding which would improve the support which they receive under section 20 and under the Children (Leaving Care) Act, 2000. Both the latter, in combination with LAC 13, would suggest that most 16 and 17 year old UASCs are entitled to section 20 or to leaving care support, but these children may not, on the other hand, be entitled to a student loan or to receive education maintenance allowance which would facilitate that support.

Some of the local authorities interviewed by Save the Children were critical of the DfES for failing to provide adequate guidance and for not taking a more assertive role in relation to the Home Office. This had led to the Home Office taking the major role in a number of UASCs issues with the end result that immigration status was taking precedence above the best interests and welfare of the child. The report by Save the Children therefore concluded that, in practice, in a significant number of local authorities, the Hillingdon Judgment and LAC 13 had not had a sufficient impact on the treatment of UASCs. Indeed, it would appear that section 17 support is still the main source of support for many UASCs, whilst the quality of service provided to these young people is often hampered by the limited resources available from central government to hard pressed local authorities.

Asylum-seeking persons aged 18 and over (undisputed cases) and accompanied children are catered for by the Home Office under the NASS scheme and are normally dispersed around the country. An exception to this is where they are either a “former unaccompanied child” with sibling ties to the area or who have entered full-time education, or are a “former relevant child” under section 2 of the Children (Leaving Care) Act, 2000, in which case they are not necessarily dispersed to another area, and, in the latter case, will not be. Those who are either a “former unaccompanied child” or a “former relevant child” who remain in the local authority area continue to be the responsibility of that local authority, although the latter can seek reimbursement up to a maximum from the NASS for the costs of providing or finding suitable accommodation to those in this group.

One question which the asylum legislation raises is how the provisions of the Children Act, 1989 and the Children (Leaving Care) Act, 2000, fit into the asylum law. There has been some case-law which may go part of the way towards answering this question. In R (on the application of A) v NASS [2003] EWCA 1473, a female destitute asylum-seeking adult had two disabled dependant children. As she did not have “adequate accommodation,” she became eligible for support, under section 95 of the Immigration and Asylum Act, 1999, from the NASS. Due to the fact that the eligible person also had children, section 122(3) of the 1999 Act then required of the Secretary of State that he offer adequate accommodation for the children as part of the eligible person’s household. Section 122(5) of the 1999 Act also states that no local authority should provide assistance to a dependant child of an eligible person whilst the Secretary of State is complying with his duty to offer adequate accommodation under section 122(3) or support under section 95. Section 122 of the 1999 Act thus creates an obligation on the Secretary of State when adequate accommodation or essential living needs are not being provided to children in the asylum context; it thereby affects a local authority’s duties in relation to children of an asylum-seeker. The woman in the above case, being the eligible person, was provided with a house that would have been adequate for able-bodied people but not for disabled children. The issues before the Court of Appeal were, therefore, what was meant by “adequate accommodation” for an asylum-seeking family with disabled children and secondly, who owed the duty to provide it. The Court of Appeal ruled that “adequate” took its meaning from the context, that “adequacy” took into account the circumstances of each individual including their dependants and that disability and the ages of the children were all relevant factors going towards both adequacy and whether the family were destitute. The Court also ruled that where the NASS was under an obligation under section 95 or 122 of the 1999 Act, the local authority were excluded from providing assistance under section 21 of the National Assistance Act, 1948 or under the Children Act, 1989.

In the later case of R (on the application of O) v Haringey London Borough Council, [2004] EWCA 535, an asylum seeking mother was herself HIV positive and hence in need of care and attention because she was “infirm,” as well as being destitute. She was therefore housed by the local authority as an “infirm destitute” under section 21 of the National Assistance Act, 1948. The local authority claimed, however, that the NASS was responsible for her two young able-bodied children. Ouseley J held that the NASS was responsible for the whole family under section 95 of the 1999 Act. On appeal to the Court of Appeal, it was ruled that a local authority’s duty under section 21 of the National Assistance Act, 1948 was not excluded in relation to an infirm destitute asylum-seeker, even when the latter was accepted as destitute by the NASS scheme. Furthermore, the local authority should ignore any NASS support when deciding whether an infirm applicant was destitute within the meaning of section 21 of the 1948 Act. However, the NASS should itself take into account any entitlement of the infirm mother under the 1948 Act from the local authority when deciding the level of support to be allocated under the NASS scheme. More importantly, the Secretary of State’s duty under section 122 of the 1999 Act to make arrangements for support of the children as part of the destitute asylum-seeking mother’s household superseded the local authority’s duty to the children under section 17 of the Children Act, 1989. What this means in practice is that the local authority might end up being the body which provides the family with the accommodation, but the NASS would have to make a financial contribution to that authority for the children’s share, for which the NASS remains financially responsible. Nevertheless, the relationship between asylum law on the one hand and the Children Act, 1989 and the Children (Leaving Care) Act, 2000, on the other hand, remains unclear.

Removal of children from the UK

According to the UN Convention on the Rights of the Child, separated children should not be sent back to their country of origin unless it is both safe to do so and “in their best interests”. This issue must be addressed on a case-by-case basis; and, even where both criteria are met, the removal should never be forced.

Asylum-seeking children are not normally granted refugee status, but are given instead Exceptional Leave to Remain (ELR) for up to 4 years or until their eighteenth birthday, after which they can apply for indefinite leave to remain. The granting of temporary immigration status is of real concern because it strengthens the fear amongst these children that they will eventually be returned to their country of origin. Unaccompanied children who have no asylum or human rights claim may be removed from the UK, provided that there are adequate reception and care arrangements in the country to which they are to be sent. This power to remove and return asylum seeking children led to criticism when the UK Government planned to return asylum seeking children without parents to Albania in 2004, despite well-known concerns about the trafficking of children into crime and prostitution in that country. ( See “Blunkett plans to send asylum seekers to Albania,” The Daily Telegraph 09/03/2003). In January, 2006, Save the Children UK, in its report, “Local Authority Support to Unaccompanied Asylum - Seeking Young People”, noted that “End of Line” cases were a major source of concern. Young people who are refused asylum or extensions to leave to remain and who have exhausted the appeals procedure are left vulnerable whilst waiting to find out whether they are to be returned to their country of origin. Some local authorities were found by the Save the Children Report referred to above to be providing adequate leaving care services in such circumstances, whilst others were providing no or only some cases with such support.  The threat of possible return of young people to the county of origin raises some important issues about the appropriate criteria to apply to asylum seeking children in such circumstances: Should human rights principles from International Human Rights Law be the basis of protection or should it be that of the “best interests” of the child, as applied to UK children under the Children Act, 1989?

Guardianship For Asylum Seeking Children

Applications for asylum from unaccompanied children are dealt with by Immigration and Nationality Directorate caseworkers who have specialist training in this field and decisions are normally made on the basis of information contained in the SEF (Minor) Form and/or from interviewing the child in the presence of a responsible adult. One of the issues which have yet to be tackled in the UK is whether all unaccompanied asylum-seeking children should have an appropriately trained person, such as a guardian, automatically appointed to ensure their welfare and to protect and advise. Currently, there is the system of the independent Panel of Advisers for Unaccompanied Asylum-seeking Children. This is a non-statutory service which is funded by the Home Office with the aim of providing short-term assistance to this category of asylum seeker; between 4 and 5 thousand UASCs are referred to it annually. It is suggested, however, that the appointment of a specially trained person for each unaccompanied asylum-seeking child, whilst having resource implications, would provide a better safeguard of their rights. Nevertheless, the question arises whether this safeguard should take the form of the appointment of a guardian for each child. Would the provision of a guardian be the most appropriate method of safeguarding an asylum-seeking child’s rights?

It has been suggested by Halvorsen that the “appointment of a guardian to protect and advise a separated child is essential in order to safeguard their rights.” (Halvorsen, 2002). Many European countries do have guardianship systems, but the process may be different for each country. In some countries, for example, separated asylum-seeking children are referred to the national system of guardianship, whilst in others there may be a special guardianship arrangement for asylum-seeking children. (Parliamentary Assembly of the Council of Europe, 2005). In either case, guardianship responsibility may be held either by an individual or by an institution. The latter may be a non-governmental body or a semi-governmental agency. Would such a system be appropriate and affordable in the UK?

In UK child law, the term “guardian” currently has a special meaning. A guardian ad litem is appointed for legal proceedings whereas an ordinary guardian is appointed when one or both parents have died and the child needs to have a responsible person to represent their long-term best interests. However, in the asylum context, neither of the latter would seem to be suitable in the UK and it is therefore suggested that the practice used in some European countries of having a special system of “guardianship” for unaccompanied asylum-seeking children should be adopted. In other words, the UK should consider appointing an individual, specially trained person, an “Asylum Guardian,” for each unaccompanied asylum- seeking child, who could represent the child’s best interests in asylum matters on a one-to-one basis. This would be a marked improvement on the independent Panel of Advisors for Unaccompanied Asylum-seeking Children, mentioned above, as the Asylum Guardian would be able to deal with, and represent, the child in asylum matters on an individual basis, similar to the way in which social workers and probation officers are able to operate. The role of such an Asylum Guardian could thus include accompanying the children concerned to interviews and guiding them through the whole asylum application procedure.

Some Regional Variations of Approach in the UK

Because of Heathrow’s closeness to the London Borough of Hillingdon, the latter gives help to the largest number of unaccompanied asylum-seeking children. ( See references in “Asylum Seeking Children” http://www.safeguardingchildren.org.uk/docs/asylum_imagefree.pdf). In February 2003, Hillingdon accounted for 13 per cent of the total number of unaccompanied asylum seeking children in London (4,762). Hillingdon provides those aged 15 and under with culturally appropriate foster care and those aged 16 and 17 with supported accommodation. However, in other local authority areas, children as young as 15 are sometimes placed in bed and breakfast accommodation or accommodated in hostels and expected to look after themselves. According to Judy Lister of Save the Children, the level of support received by an UASC depends upon the particular local authority and it can be a “lottery”; in particular, one of the worst features is the practice of placing young people in unsupported accommodation:

“The UK currently lacks a strategic approach to the reception and care of separated children. This needs to be addressed if we are to stop vulnerable children falling through the net.” (Lister, )

The same theme is echoed by the children’s charity, Barnardo’s. In its report, “Children First and Foremost”, published in 2000, Barnardo’s surveyed 54 local authorities in England and Wales and concluded that most local authorities had, at that time, no specific policies for working with UASCs, and provided most of these children with services under section 17 of the Children Act, 1989. The latter, however, is not entirely appropriate to a situation faced by many UASCs where a child without an adult carer needs on-going and intensive support. In addition, more than a third of the authorities surveyed had placed UASCs outside the responsible borough with the end result that these children received very different levels of support, making the situation for them very much a “lottery.” This is an area where an appointed Guardian could have an important role to play in ensuring that there is that on-going and intensive support for the child.

London and the South-East bare the brunt of looking after UASCs because of the number of airports and seaports in the area. Not all London Boroughs take their statutory responsibility for UASC’s as seriously as they should. According to Stanley, “it is not uncommon” for some London local authorities to place older UASCs in accommodation outside the area, where the racial, cultural and linguistic needs of the young asylum seekers are not being adequately attended to (Stanley, 2001). Some children in their late teens are also housed in bed and breakfast accommodation rather than being in local authority accommodation where they would have better access to appropriate support and services. This regional variation of approach seems to persist even after the Hillingdon Judgment and LAC Circular (2003) 13 were supposed to have brought some degree of clarity into this area.

Legal Safeguards

 In 2002, the Government White Paper, “Secure Borders, Safe Haven, Integration with Diversity in Modern Britain” (Cm 5387, 2002), proposed that unaccompanied asylum-seeking children should continue to be supported under sections 17 and 20 of the Children Act, 1989 and that the Home Office would work with local authorities to improve the care and support for these children. However, it was also proposed that such children might be interviewed by specially trained staff about their asylum applications more often than had previously been the case. The Black Londoner Forum group responded to these proposals by suggesting that such unaccompanied asylum-seeking children should have the same legal safeguards as children of domestic origin currently enjoy in legal proceedings affecting them in the UK (Black Londoner’s Forum Group, 2002).

The Government has claimed that UK immigration and asylum laws are, on the whole, consistent with the UN Convention on the Rights of the Child, but the UK‘s reservation from that Convention allows the Government to treat asylum-seeking children differently from other children and the principle of “the best interests of the child,” often used in national care laws, has in general failed to inform asylum law or policy relating to children. Children are in a vulnerable position as compared to adults and unaccompanied asylum seeking children are more vulnerable than most. It is therefore suggested that all children in the UK, as a matter of general principle, should enjoy the same legal protection, regardless of whether they are asylum seekers or not. This would place the primary emphasis squarely back on protection of this vulnerable group of asylum-seeking children as children first and foremost, and asylum seekers second. To this end, it is suggested that the UK should lift its reservation concerning Immigration and Nationality on the UN Convention on the Rights of the Child (UNCRC) and honour the rights and protections enshrined in the Convention.

The IND claims that the Panel of Advisors, referred to earlier, ensure that Unaccompanied Asylum-Seeking children do obtain legal advice, which is provided free from the Immigration Advisory Service and the Refugee Legal Centre. This suggests that UK policy and practice in this area is not all bad. In some respects, the UK does better than many European states. For example, on issues such as the funding of the Panel of Advisers, immigration rules on child asylum applicants, the provision of free legal aid to such applicants and the provisions in section 22 of the Children Act 1989 on culturally appropriate care and participation of the child. However, in the Children Act, 2004, section 11, there has been a failure to include asylum-seeking children in relation to measures aimed at child protection. This section of the Children Act, 2004, aimed at child protection and welfare, does not specifically include the NASS, or those Detention Centres where asylum seekers and their children may be held. This failure was criticised by the Parliamentary Joint Committee on Human Rights as unjustifiable discrimination. The Committee called for changes to the Children Bill, during its passage through Parliament, to ensure equal treatment for asylum-seeking children. The Committee concluded by saying:

“We are not persuaded that the government has put forward any convincing justification for treating asylum seeking children differently from the UK national children in the Children Bill……We conclude that the exclusion of immigration/asylum agencies from the scope of the new duties and arrangements is unjustifiable discrimination against such children on grounds of nationality”. (Joint Committee on Human Rights, 2004, 28, paragraphs 96 and 97)

However, one measure that has been introduced under the Children Act, 2004 is a National Register for Unaccompanied Asylum Seeking Children (NRUC), which was launched in November, 2004. The aim of this new Register is to improve the sharing of information between the various agencies involved in the care of unaccompanied asylum-seeking children. It is hoped that this important move will improve the co-ordination of services given to unaccompanied children by a number of disparate care agencies.

The Asylum and Immigration (Treatment of Claimants) Act, 2004

Children who are asylum seekers are also affected by the Asylum and Immigration (Treatment of Claimants) Act, 2004. Under section 2 UASCs are not immune from prosecution, for instance, under the offence of being undocumented when they seek leave to enter or remain in the UK, unless they have the defence of “reasonable excuse”. Indeed, according to Baroness Scotland of Asthal, “there might be situations where the offence might properly apply; for example, a 17 year old child who chooses to dispose of their passport with a specific aim of ensuring or enhancing their claim,” although it was envisaged that the offence was unlikely to apply to children in practice. (Hansard, House of Lords Debates on the Bill, March 15^th 2004, Column 119). The Refugee Council have expressed concern at the possible use of this offence against unaccompanied children. The Refugee Council consider that children should not be asked to explain why they followed the instructions of the person who smuggled them into the UK to destroy their documents, but it should be presumed instead that the child could not be expected to refuse those instructions because of fear for the consequences. (See the Asylum and Immigration Act, 2004).

It should be noted that the children of failed asylum seekers from whom support has been withdrawn under section 9 of the Asylum and Immigration (Treatment of Claimants) Act, 2004 may still be eligible for support from the local authority. Although the family will cease to be supported as a family in such cases, the children may continue to be supported by the local authority. The family itself will become ineligible for support under both sections 21 and 29 of the National Assistance Act, 1948 and there will also be no support available for the family from Social Services under the Children Act, 1989; but, if the welfare of a child of the family is endangered, that child may receive support under section 20 of the 1989 Act, discussed earlier. This may result in the child being separated from the rest of the family, the latter not being assisted with either accommodation or subsistence. This situation arose in the well-publicised case in Bolton when the Sukulu family were faced with eviction by the Home Office after its asylum claim and appeal were rejected. In this incident, a mother of six children was informed that if she could not look after her children, the five youngest children would be taken into care by Bolton Social Services, whilst she would be left destitute and alone. In 2003, the then Immigration Minister, Beverley Hughes, told the Select Committee on Home Affairs that she hoped the policy of separating children from their parents would not be implemented in practice. She said that it could not be “in the best interests” of such children to be separated from parents and other members of their family and hoped that it would never come to that. (Social Justice, nd, http://www.totalcatholic.com/.) Since then, however, it has unfortunately fallen to Bolton Council to decide whether or not it should come to that. This raises some important questions: Is this unfortunate situation in keeping with the spirit of the UN Convention on the Rights of the Child, which places emphasis on “the child’s best interests”? Is it in breach of Article 8 of the ECHR on respect for family life?

The human rights aspect has recently been raised in the High Court in the first legal challenge to Section 9. In January, 2006, a Congolese mother of three children, known as K, claimed before Mr Justice Bean that Section 9 of the 2004 Act violated the UN Convention on the Rights of the Child, was in breach of the Children Act, 1989 and of the Human Rights Act, 1998 ((K) v Asylum Support Adjudicators and Secretary of State for the Home Department, unreported). The mother had come to the UK in 2002 and had claimed asylum; she eventually lost her case for asylum and her benefits were therefore cut off. Refusing permission for Judicial Review, Mr Justice Bean, however, considered that it was not, in his view, arguable that the policy of removing benefits from failed asylum -seekers with families was incompatible with the ECHR. He added that it was for parliament, not the courts, to decide if the policy enshrined in section 9, which could lead to children being taken into care, was desirable or not. Commenting on the decision, the Refugee Council’s Chief Executive stated:

“The government doesn’t need the courts to inform them that section 9 is inhumane and ineffective. The Refugee Council re-asserts the findings of our joint report with Refugee Action, that this policy of trying to starve out asylum seekers is not the behaviour of a civilised country. Encouraging failed asylum seekers to return home, when appropriate, should not involve coercion and the threat of removing children.” (Travis, 2006)

The government claims that the intention behind the current policy is merely to encourage families to return home to their country of origin, and to discourage families from applying for asylum, but the effects on the children caught up in this situation can be traumatic. How can the break-up of the family as a result of the withdrawing of benefits work in the best interests of the children? It is suggested that the decision of the High Court discussed above should be reconsidered and indeed the case is to go on appeal.

 

Education

The education of child asylum seekers and the children of asylum seekers is an important part of social integration. Whilst maintaining their cultural and religious differences is very important, it is nevertheless essential that unaccompanied asylum seeking children in particular are able to speak English in order to be able to communicate with those around them and to integrate into the local community. In 2003, the Refugee Council estimated that the number of school age children classified as “refugees” exceeded 9,000; the problem of education and integration of such children is therefore not an insignificant one.

Unaccompanied asylum seeking children aged 5-16 in the care of the local authority are entitled to the same full-time education as UK children receive. In theory, so are the children of asylum seekers. However, in practice the adequate education of asylum -seekers’ children is a particularly difficult problem to overcome. Education facilities in the new Asylum Accommodation (Removal) Centres, for example, are not sufficient to cope with the numbers of children involved. The Nationality, Immigration and Asylum Act, 2002, allows the government to establish such Centres and to provide education to children who are accommodated within them. However, those Local Education Areas (LEAs) which have Asylum Accommodation Centres within their locality have less legal obligations in relation to education of asylum seeking families than those local authorities which do not. For example, certain provisions of the Education Act, 1996 (including section 14, which places a duty on LEAs to provide full-time education for those children in the area of compulsory school age) and of the Schools Standards and Framework Act, 1998 do not apply, in relation to asylum seekers accommodated in them, to those LEAs which have Accommodation Centres in the area, although the LEA does continue to have responsibility in relation to those children within the Centres which have special educational needs (SEN) and for assessing children for SEN.

For those children who remain in mainstream schooling, including those who are unaccompanied and being looked after by local social services, the schools receive funding for asylum seeking children through the Educational Formula Spending Share. However, there are also two other sources of funding available to assist with the education of asylum seeking children, namely, the Vulnerable Children Grant, available to LEAs, and the Ethnic Minority Achievement Grant, to assist mainly with English language education. There is also the possibility in some circumstances of the children being provided with free school meals and, at primary school level, with free milk and being assisted with the cost of school uniform. (See, for example, Part VI of the Immigration and Asylum Act, 1999 and section 20 of the Children Act, 1989).

Unaccompanied asylum-seeking children once faced an uncertain future when they reached adulthood. At the age of 18, they could be dispersed to another area of the country and become subject to NASS support. Having arrived in the UK with no family to support them, young people were being faced with further upheaval on turning 18 years of age. However, as a result of the case of R (Berhe) v Hillingdon London Borough, [2004] 1 FLR 439, mentioned previously, this situation should have changed. Local authorities have now had extra expense cast upon them in relation to children who are asylum-seekers by that decision, otherwise known as The Hillingdon Judgment. In this case, the four claimants had each arrived at Heathrow in 2000 as destitute, unaccompanied asylum-seeking children. They were referred to the social services department of Hillingdon London Borough where they were cared for until the age of 18 years. Each of the four had entered full time further education and had successfully claimed that they were owed, upon reaching adulthood, duties by the defendant borough under section 2 of the Children (Leaving Care) Act, 2000. The latter provision amends section 23 of the Children Act, 1989, and makes provision for after care services for children who have previously been “looked after” by social services; it imposes duties on local authorities to prepare children in their care for life after they leave care, by for example, helping them find employment or further training. A “looked after” child is one who has been provided with accommodation by the local authority under its social services functions (e.g. the accommodation of children in need) or who was in the local authority’s care following a court care order. As mentioned earlier, the duties owed by the local authority towards “looked after” children are to safeguard and promote their welfare and to provide them with accommodation and maintenance. The responsible local authority thus has a continuing duty towards a “former relevant child” under the Children (Leaving Care) Act, 2000 to support and assist that person until the age of 21 years and possibly beyond this age in some cases.

The High Court in the Hillingdon case ruled that each of the four applicants had been “looked after” and provided with accommodation by the local authority until the age of 18 and each was therefore a “former relevant child”; hence, each was eligible under the 2000 Act for leaving care support. The implications of this case are that 16 and 17 year-olds who have been “looked after” under the Children Act, 1989 and who are seeking asylum should also be treated equally to British children in care and must be allocated a social worker to both advise and check on their welfare. The Hillingdon Judgment has increased the financial and physical burden placed on local authorities. Funding for leaving care services is provided by the Department for Education and Skills and it was announced in November 2003 by the Secretary of State for that Department that an additional £10 million would be made available for that service from 2004/05. In 2004, the Unaccompanied Asylum Seeking Children (Leaving Care) Grant Determination for 2004/05 was introduced, under the powers contained in Section 31 of the Local Government Act, 2003, with the specific aim of assisting local authorities worst affected by the Hillingdon judgment. The additional costs of supporting eligible care leavers is therefore being met by the Treasury. This additional funding for the 18 year old group has helped to relieve some of the financial burden which local authorities like Hillingdon have had to shoulder.

Medical Care For Children Who Are Asylum Seekers And The Human Rights Perspective

The Human Rights Act, 1998 has various implications for child asylum seekers in relation to medical care. The 1998 Act incorporated into national law the rights and freedoms set out in the European Convention on Human Rights, including the right to life (Article 2) and the prohibition of unfair discrimination (Article 14). The 1998 Act only applies to the actions and decisions of “public authorities”, but the NHS, the Primary Care Trusts and health professionals working with the NHS fall within this category. The 1998 Act could have an important impact on asylum seekers’ rights in relation to medical care. Unaccompanied children with limited leave to remain have access to free NHS medical care whilst their leave to remain continues and any other asylum seeking child also has the same entitlement. Failed asylum seekers and those whose limited leave to remain has expired, however, are in general not entitled to NHS hospital treatment (See Statutory Instrument 2004, No. 614).  There are exceptions to this, such as treatment for certain serious diseases and emergency treatment at a Casualty Department of a hospital. GP’s also have the discretion to accept anyone as an NHS patient and there is no obligation upon them to check the immigration status of an applicant. Once registered, an asylum seeking child or child of an asylum seeker will be entitled to appointments with a GP and to have routine health checks and immunisations. Due to dispersal of asylum seekers to certain areas of the country, however, some GP’s have come under pressure to accept a large number of asylum seekers’ applications for registration with their practice. The British Medical Association has received reports that some GP’s in this position have either refused to register an asylum seeker or have offered only temporary medical care. (British Medical Association, 2001). This is very concerning. Whilst it is recognised that GP’s have neither endless resources nor time, GP’s must be careful in doing any of the above not to unfairly discriminate against asylum seekers. If they do, they may be breaching both ethical and legal codes. Funding is the key issue here; and, whilst extra funding may be applied for under the NHS (Primary Care) Act, 1997, this depends upon the availability of local resources and can therefore lead to a varied level of funding in different areas of the country.

NHS prescription charges do not apply to the under 16 year olds, whether an asylum-seeker or otherwise; nor does the cost of dental care or optician charges. However, there appears to be a gap in the system for accompanied asylum-seeking children who are aged 16 to 18 years of age, because there is no clear provision relating to health care for this category unless the person concerned is in full-time education. In theory, unaccompanied children under the age of 18 years have the right to accommodation, general care, education and health care, but the reality is not so good. Many of the 16 to 18 year old teenagers end up being placed in adult accommodation and are not offered full needs assessments which would provide them with individual care plans. In addition, adult asylum-seekers are not entitled to vitamins and foods for their babies which other mothers in the UK may receive and this has knock-on effects on the health of the children affected by this form of discrimination. Children arriving in this country may not have received an appropriate diet in their country of origin; they may have health problems that have not been picked up before arrival in the UK because of lack of regular screening in their country of origin. Immunisations may also not have been kept up-to-date. Some may have particular health problems that are not very common amongst other children in the UK, such as Tuberculosis, problems associated with being HIV positive or the psychological consequences of torture and trauma. It is therefore important that asylum-seeing children and children of asylum-seekers be entitled to the right kind of medical care appropriate to their circumstances. This, however, raises the issue of confidentiality of asylum-seekers as patients. Asylum-seekers, children or otherwise, are rightly entitled to the same degree of confidentiality in relation to their medical circumstances as any other patient. Treading the fine line between this confidentiality and being able to offer the correct medical treatment and care is never an easy one to achieve and the problem may be made worse by any language difficulties, inexperience of NHS procedures and cultural differences that some asylum-seekers face. The solution may lie in better training for GP’s in the use of, for example, interpreters, identifying the effects of torture, awareness of local asylum support agencies and in racism awareness, all of which inevitably require extra funding from the government and extra time for training in an already overworked NHS system.

The Human Rights Issues

As discussed earlier, immigration and asylum legislation is one area of UK law in which the welfare of the child is not treated as paramount. Whilst “the best interests of the child” principle is to be found in the 1989 UNCRC, where Article 3(1) states that “[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration”, it is not found in the ECHR. So can a human rights approach based on the ECHR offer anything different to this area of debate? In this respect, the human rights issues centre around Article 14 of the ECHR, concerned with the prohibition of unfair discrimination in the securing of rights guaranteed by the ECHR. Article 14 states that

Accordingly, it is not permissible to discriminate against persons on grounds of  “race, colour, language, religion, political or other opinion, national or social origin” in relation to either the right to life (Article 2), the right not to be subjected to inhuman or degrading treatment (Article 3) or the right to family life (Article 8). It is particularly the latter which is of relevance in this context. The question which arises here is whether the splitting up families and placing children into care, merely because of their parents’ immigration status, could be in breach of Article 8 of the ECHR. Could the break-up of the family in this way, where it is the legislation which is responsible for that break-up, and not directly the conduct of the family itself, be considered an infringement of both the asylum-seeker’s and child’s right to respect for family life? This is an arguable point. However, given the way in which the courts have been interpreting the Convention in recent years, it would be a distinct possibility that they would rule in favour of an asylum seeker in this situation. In its approach to child asylum seekers and children of asylum seekers, is the UK Government adhering, in letter and in spirit, to its human rights obligations under the European Convention of Human Rights? It is suggested in the discussion below that it is not.

The theoretical perspective: “human rights” or “best interests of the child?

 

As mentioned above, the ECHR does not contain a direct reference to “the best interests of the child” principle, whereas the UNCRC does. From a theoretical perspective and in the context of UK asylum law and practice, which of these two approaches offers the most potential in assisting a child asylum-seeker or child of an asylum-seeker?

 

a) The European Convention on Human Rights : the Human Rights approach 

The European Convention on Human Rights (ECHR) has been described by Woolf as “not a child-friendly treaty,” in that it lacks a general provision which recognises the need for special protection for children. (Woolf, 2003, p 205). Whilst children are equally entitled to the same rights under the ECHR as adults, these have to be balanced against parental rights and responsibilities, as recognised by the European Court of Human Rights in the case of Nielson v Demark (1989) 11 EHRR 175. Under the Human Rights Act, 1998, English courts and other “public bodies” have to interpret and apply the ECHR to children who are nationals, but what about those in the UK who are asylum-seeking children or children of asylum-seekers? This issue raises a public interest aspect to the debate. The European Court of Human Rights, in it decisions, has developed the principle of proportionality in balancing the public interest with the fundamental rights of the individual. (Soering v United Kingdom (1989) 11 EHRR 439).

Where children are involved, it has been suggested that the European Court should give adequate consideration to the “best interests of the child.” (Van Bueren, 1996). This principle is now being used by the courts in relation to allegations of breaches of Articles 8 (family life) and 3 (inhuman or degrading treatment or punishment), at both the European and the national level, (R (on the application of The Howard League for Penal Reform) v Secretary of State for the Home Department (No. 2 ) [2002] EWHC 2497 and R (on the application of SR) v Nottingham Magistrates’ Court (2001) 166 J.P. 132 ), which begs the question of whether there is any fundamental difference in the two approaches: rights based or best interests of the child? This issue will be addressed below after further discussion of the UNCRC.

b) The UN Convention on the Rights of the Child : the “best interests of the child” approach.

The English Courts’ approach to “the best interests of the child” principle can be seen in cases where there is also a public interest element at stake, such as security or protection of good order. In such cases, unlike the court at Strasbourg, English courts do not have to consider the “margin of appreciation.” The latter allows states to differ slightly from each other when considering “the best interests of the child”, whilst at the same time acting proportionately in determining what their power of appreciation allows.

In R (on the application of P) v SSHD, [2001] 1 WLR 2002, the Court of Appeal was faced with a challenge by two mothers against the Home Office policy of automatically separating mothers from their children when the latter reached 18 months of age. The Court was called upon to balance the public interest in maintaining good order and management in prisons with the right to a family life for the child and the child’s best interests, as well, of course, as the right of the mother to a family life. In taking into account the mother’s right to a family life and what was in the best interests of the child, the Court made reference to the UNCRC, Articles 3(1), 9 and 18. According to Lord Phillips:

“…The European court has consistently held that protection of the interests of children falls within these aims. The balance to be struck in these cases is between the rights of the parents and the rights of the child: the only legitimate state interest is the protection of the child. In striking that balance, the European court has repeatedly stressed that the interests of the child are of crucial importance…In giving greater weight to the interests of the child than to those of his parents, the European court is reflecting contemporary international standards as expressed in the United Nations Convention on the Rights of the Child (adopted by the United Nations General Assembly on 20 November 1989, in force 2 September 1990). This provides, for example, in article 3(1): "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."…” ( Per Lord Philips at paragraphs 85 and 86 ).

The Court of Appeal went on to add that any interference with the child’s rights to a family life, under Article 8 of the ECHR, has to be justified under Article 8(2); and that the aims to be taken into account in this respect included the welfare of the child, under which there were three main factors to consider: the extent of the harm likely to be caused by separation from the mother, the extent of the harm likely to be caused by remaining in the prison environment and, finally, the quality of the alternative arrangements. These factors taken together would appear to represent a consideration of the principle of “the best interests of the child.” Similarly, in CD and AD (by his litigation friend the Official Solicitor) v SSHD, [2003] 1 F.L.R. 979, the court again made reference to “the best interests of the child principle” in a case involving a mother (CD) who had been excluded from a Mother and Baby Unit whilst in prison. In this case, Kay J stated that:

“It is common ground that the decision-maker was obliged to have regard to the best interests of AD when considering whether or not to separate mother and child…….(A) decision-maker within the Prison Service is bound to give effect to Article 8 of the ECHR……It is obvious that a decision to separate mother and child engages Article 8. It is an "interference" with the right to family life. Moreover, it is common ground, in the present case, that the best interests of AD are in his being with his mother. The evidence to that effect is unequivocal. The final item of common ground in this context is that, notwithstanding the "primary consideration" status of the child's best interests and the engagement of Article 8, these matters are not by themselves determinative of the issue whether a decision to separate is lawful, even though it could be contrary to the best interests of the child and would amount to an interference with the Article 8 rights of the child and its mother. The substantive dispute in the present case centres upon two issues, namely (1) did the decision-maker in fact accord primary consideration to the best interests of the child? and (2) was the decision to separate a permissible one in the sense of being justifiable and proportionate?”

Accordingly, it is clear from the cases above that the best interests of the child have to be taken into account first and foremost in such cases before the principle of proportionality can be applied. The principle of proportionality is itself aimed at achieving a balance between what may be called “public interest” considerations and the protection of the fundamental human rights of the individual. The principle of proportionality therefore allows states to diverge from a strict adherence to human rights where to do so would be in the general interests of the community. It demands that interference with the human right(s) in question is proportionate to the aims of serving the wider public interest whilst at the same time having respect for the human right. 

The “best interests of the child” principle has also had a part to play in cases concerning detention of young offenders, when the issue of the right to respect for a child’s private life has been raised. In the case of R (on the application of SR) v Nottingham Magistrates’ Court,(2001) 166 J.P. 132, for example, Lord Justice Brooke referred to the best interests of the child principle in the context of placing a 16 year old boy in a Young Offenders Institution, stating that:

“The link between the rights and entitlements of a child which the UNCRC proclaims and a child’s right to respect for his or her private life which is granted by ECHR Article 8(1) is vividly articulated by the closing words of UNCRC Article 40, which sets out the right mentioned in (viii) above. Article 40 ends in this way:
[Such a child’s right to be treated in a manner consistent with his or her sense of dignity or worth] reinforces the child’s respect for the human rights and fundamental freedoms of others and takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society”.

The question then arises as to which approach is best to take from the viewpoint of the asylum-seeking child or child of an asylum-seeker. Is there indeed a difference in outcome between these two approaches? 

It is suggested that there is a difference between the human rights approach and an approach based on the argument that a certain course of action is in the child’s “best interests”. For example, the right to a family life may not necessarily turn out in practice to be in the best interests of the child. This point can be aptly illustrated by the situation where a child is detained in a Removal/Detention Centre, along with members of their family, so that the family remains together. Whilst this may be respecting the right to family life for that child, it is not in their best interests, it has been argued here, for a child to be detained in any circumstances. The logical consequence of this argument is that, in order to give respect to the child’s right to family life under Article 8 of the ECHR, the whole family should therefore be accommodated in suitable family accommodation, (not in a Removal Centre), where access to decent education and health care would be available within the general community. In short, whichever argument, rights based or welfare based, most suits the desired outcome from the viewpoint of the child asylum-seeker or child of an asylum-seeker could, in theory, be used as a basis for decision and action. In some situations, the end result may be the same, whichever basis of argument is put forward, but this will not inevitably be the case.

Could the UK be in breach of any of its obligations under international human rights law in its treatment of and approach to issues involving child asylum-seekers? From what has been argued above, it is clear that separating an asylum-seeking child, or child of an asylum-seeker, from its family is prima facie in breach of the child’s right to a family life under Article 8 of the ECHR; it therefore needs to be justified on the grounds contained in the Convention. However, the forced detention of a child with the family in the asylum context runs counter to “the best interests of the child” principle, discussed earlier. Hence, in order to meet both the principle of “the best interests of the child” and the right to family life, the practice of detaining families in Asylum Removal/Detention Centres would need to be abandoned. The continued use of such a practice is in breach of the best interests of the child, whilst the human rights obligations under Article 8, above, require that the child remain with the family unless otherwise justified under the terms of the ECHR. Hence, the only way in which the UK can meet its obligations in this context is by providing accommodation and support within the community itself.

Conclusion

 From the above discussion, a number of conclusions may be drawn on the way in which asylum law and policy in its impact on children operate in the UK. First of all, the Government and local authorities should accept that the needs of UASCs are not being adequately met and that, whilst the legislation exists to achieve that objective, it is not being consistently applied. The Government needs to provide clearer guidance to local authorities on how the needs of this particular group can be more appropriately met. Other areas where improvement needs to be made are the detention of asylum seeking children who are under the age of 18, but whose age is in dispute and the status which most children are given in the UK (i.e. Exceptional Leave to Remain) usually up to the age of 18, rather than refugee status. Exceptional Leave to Remain provides merely temporary protection and leaves the child with many uncertainties, including their education, to face in the future. This may have psychological consequences for the child and certainly is not something which is, in the terms of national child law and the UNCRC, “in the best interests of the child.” (Note that the Children Act, 1989, uses the similar expression “welfare”, as opposed to the “best interests of the child.”)

Secondly, it is suggested that a system for the appointment of a special “Asylum Guardian” for each unaccompanied asylum-seeking child be introduced to ensure that “the best interests of the child” in the long-term are maintained. A properly trained guardian would be able to ensure that the child is adequately advised and protected and could also provide an important link between the child and those agencies responsible for his/her day-to-day education and care.

In 1998 UNHCR and Save the Children launched a Programme entitled “Separated Children in Europe Programme” which resulted in 1999 in the publication of a Statement of Good Practice. The latter outlines important principles which should be adhered to in asylum law and policy relating to separated children seeking asylum, such as the right to participation, non-discrimination and acting in “the best interests of the child”. In many respects, as outlined above, UK asylum law fails to adhere to these principles in its application to children who are asylum - seekers. According to a Government Green Paper of November, 2003, “Every Child Matters;” but the Government has yet to put this into practice in terms of the way in which separated asylum-seeking children are treated in the UK. Currently, asylum - seeking children are being treated by the Government as “second class citizens” when compared to other children in the UK. In doing so the, Government may be breaching some of its Human Rights obligations. In 2009, the UN Committee on the Rights of the Child will be examining the UK’s law and policy on children. It is suggested that the UK Government needs to review both its law and its policy in this area and produce a plan of action if it is to meet its human rights obligations by then.

Finally, the Asylum and Immigration (Treatment of Claimants) Act, 2004, in its effects on the family and family life, also raises some further human rights issues which have been outlined in this article. The House of Lords and the rest of the judiciary have so far been robust in ensuring that human rights violations do not occur in the asylum context and that the rule of law is upheld.(2) It is to be hoped that they will remain as robust in continuing to challenge the Government and its legislation on asylum and its impact on children so as to ensure that no further human rights breaches occur and that asylum-seeking children are allowed to be “children first and foremost” and asylum-seekers second.

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