Unaccompanied and Separated Children and Refugee Protection in the U.K. seeking asylum alone united kingdom Jacqueline Bhabha and Nadine Finch A REPORT FUNDED BY THE JOHN D. AND CATHERINE T. MACARTHUR FOUNDATION | NOV 2006 seeking asylum alone united kingdom Jacqueline Bhabha and Nadine Finch A REPORT FUNDED BY THE JOHN D. AND CATHERINE T. MACARTHUR FOUNDATION | NOV 2006 A Jacqueline Bhabhahas worked on issues relating to Nadine Finch is a barrister who practises at Garden B O migration and refugee protection for 20years, first Court Chambers in London. She specializes in immi- U as a practitioner in the U.K. and more recently as a gration, asylum,and human rights law and has a T T researcher, writer and teacher in the U.S. She is the particular interest in representing children and those H Jeremiah Smith Jr. lecturer in law at Harvard Law who have been trafficked to the U.K. She also prac- E A School, the executive director of the Harvard Uni- tises in the family court in cases involving children U versity Committee on Human Rights Studies,and or parents who are subject to immigration control. T H an adjunct lecturer on public policy at the Kennedy She was a contributor to the fifth and sixth editions O R School of Government. From 1997to 2001, she directed of Macdonald’s Immigration Law and Practice,one S the Human Rights Program at the University of of the co-authors of Putting Children First: A guide Chicago.Prior to 1997, she was a practising human for immigration practitioners(LAG, 2002)and Working rights lawyer in London.She received a first class with children and young people subject to immigration honours degree and an M.Sc from Oxford University, control: Guidelines for best practice (ILPA, 2004), and and qualified as a solicitor from the College of Law contributed to Child first, migrant second: Ensuring in London.Her writing on issues of migration and that every child matters(ILPA, 2006). She also con- asylum in Europe and the U.S. include a co-authored tributed a chapter to The Asylum Seeking Child in book, Women’s Movement: Women Under Immigra- Europe(University of Göteborg, 2005). She works tion, Nationality and Refugee Law(1994), an edited closely with a number of nongovernmental organi- volume, Asylum Law And Practice in Europe and zations in the U.K.on issues related to unaccompanied North America (1992)and many articles including and separated children and trafficking,and has “Get Back to Where You Once Belonged: Identity, spoken at a number of national and international Citizenship and Exclusion in Europe” (1998), “Incon- conferences on these topics. sistent State Intervention and Separated Child Asy- lum Seekers” (2001),“Internationalist Gatekeepers? The tension between asylum advocacy and human rights” (2002) and “The Citizenship Deficit: On Being a Citizen Child” (2003).She is currently working on issues of transnational child migration, trafficking, adoption,and citizenship. She teaches international human rights and refugee law and serves on the board of the U.S.section of International Social Services and the Journal of Refugee Studies. S E E K I N G A S Y L U M A L O N E Acknowledgments The U.K.report was partly funded by a research grant from the John D. and Catherine T. MacArthur Foundation. In the U.K. it was also made possible by the support of Garden Court Chambers, the initial research undertaken by Ben Wardand the hours of unpaid work donated by Nadine Finch, Shu Shin Luh,and Ariadne Papagapitos. (Ben Ward is now working in London as Special Counsel to the Europe and Central Asia Division of Human Rights Watch.) It is part of a larger study into the treatment of legal representatives, social workers, non-governmental separated and trafficked children in need of refugee organizations,and government employees, and attended protection which is entitled Seeking Asylum Alone. meetings at which these informants were present. This study, which investigated the situation in the U.S. Ariadne Papagapitos and Nadine Finch undertook and Australia, in addition to the U.K., was directed by most of the desk research. Jacqueline Bhabha of Harvard Law School and Mary Face to face interviews were conducted with:Liz Crock of the University of Sydney. Research in the U.K. Barratt, Solicitor, Bindman & Partners; Alex Browne, was coordinated by Nadine Finch. Manager and Senior Social Worker, Children and Fam- Interviews with the unaccompanied or separated iliesServices, Glasgow City Council; Laura Brownlees, children, and with theyoung people were conducted Policy Officer, Save the Children U.K.; Melissa Canavan, by Shu Shin Luh. She also analyzed the data contained Senior Case Worker, Refugee Legal Centre; Kathryn in the written determinations of a sample of asylum Cronin, Barrister,Garden Court Chambers;Sarah appeals brought by unaccompanied or separated chil- Cutler, Policy and Research Officer, Bail for Immigration dren and young people in 2004. Ben Ward and Nadine Detainees; Samantha Day, Solicitor, Luqmani Thomp- Finch each undertook a number of interviews with son; Bill Davies, Head of the Asylum Support Team, 3 Manchester City Council; Sue Fisher, Assistant and Advice Manager, Scottish Refugee Council; Carron Director, Save the Children, Scotland, Alison Harvey, Somerset, ECPAT UK; Jane Sufian, Senior Policy Officer, Principal Policy and Practice Manager, Children’s Rainer — National Leaving Care Advisory Service; Society; Katherine Henderson, Head of the Immi- Samar Taselli, Case Worker, Stockport Law Centre; gration Department, Browell Smith Solicitors; Sally Thompson, Partner, Luqmani Thompson Solic- Catriona Jarvis, Senior Immigration Judge, Asylum itors; Clare Tudor, Adviser, Immigration Advisory and Immigration Tribunal; Kate Jessop, Solicitor, Service, Glasgow; Heather Violett, Immigration Brighton Housing Trust; Helen Johnson, Manager Advisory Service Team Leader,Oakington Immigration of Children’s Panel, Refugee Council; Mike Kaye, Removal Centre; and Val Watson,Family Support Communications Manager, Anti-Slavery Interna- Team, Children’s Services, Newcastle Social Services tional;Ailish King Fisher, Assistant Director, Children Department. We are very grateful for the time they and Family Asylum Policy Team, Asylum Appeals set aside for these interviews and for their willing- M Policy Directorate, Immigration and Nationality ness to be asked subsidiary questions at a later date. O D Directorate; Ken MacDonald, Solicitor,Immigration Short telephone interviews were conducted with: G N Advisory Service, Glasgow; Adrian Matthews, Project Lisa Amin, Lawrence Lupin; Richard Bartram, I K Manager of the Refugee and Asylum Seeking Chil- Luqmani Thompson; Emma Cohen, Bates, Wells D E T dren’s Project,Children’s Legal Centre, University of Braithwaite; Jane Dennison, Ben Hoare Bell; Zofia I N Essex; Ciaran McKeown, Save the Children, New- Duszynska, Hammersmith & Fulham Law Centre; U | castle; Paul Morris, Case Worker, South Manchester Oliver Kingsley, Ben Hoare Bell; Sean McLoughlin, E N Law Centre; Noolen Oh, UNHCR(U.K.);Chris TRP Solicitors; Monica Patel, Irving & Co.; Martina O L Perkins, Manager of the Homeless Young Person’s Slanagan, Clore & Co.; Stefan Vnuk, Fisher Meredith; A M Team, Glasgow; Margaret Phelan, Barrister, Renais- and Sarah Woodhouse, Birnberg Peirce. U L sance Chambers; Kate Phillips, Assistant Social Valuable information was provided outside of Y S Worker,Child Asylum Team, West Sussex County a formal interview setting by: Debbie Ariyo, Executive A G Council; Kate Pooler, UNHCR(U.K.);Rajendra Director of Africans Unite Against Child Abuse; Louise N KI Rayan, Refugee Legal Centre,Oakington Immigra- Arthurs, Solicitor, Hereward & Foster Solicitors; E E tion Removal Centre; Julia Recht, Asylum Support Alicja Barton, Asylum Seeker Team, Cambridgeshire S 4 County Council; Rona Blackwood, Refugee Programme Children’s Society; Susan Rowlands, General Secretary, Director, Save the Children U.K.; Syd Bolton, Legal Immigration Law Practitioners’ Association; Alison and Policy Officer (Children and Young People), Stanley, Partner, Bindman & Partners Solicitors; Nerissa Medical Foundation for the Care of Victims of Steel, Legal Services Commission; and Charles Torture; Lynne Chitty, previously Senior Social Watters, Director,European Centre for the Study Worker,West Sussex Social Services Department; of Migration and Social Care, University of Kent. Jane Coker, Immigration Judge, Asylum and Immi- Additional information was supplied by members gration Tribunal; Heaven Crawley, Independent of the Refugee Children’s Consortium; the Steering Consultant; Jack Cunliffe, Research, Development Group of the Refugee and Asylum Seeking Children’s and Statistics Directorate of the Home Office; Judith Project based at the Children’s Legal Centre at the Dennis, Policy Adviser (Unaccompanied Children), University of Essex; and the Unaccompanied Asylum Refugee Council; Patricia Durr, Parliamentary Adviser, Seeking Children’s Stakeholder Group. We would also Children’s Society; Jane Dykins, Head of the Children’s like to thank Martin John, Director of Tribunals at Section, Refugee Council;Chris Endersby, Policy the Department of Constitutional Affairs and Sarah and Standards Manager, Kent County Council; Karen Young, Legal and Research Unit at the Asylum and Goodman, previously Service Manager, London Immigration Tribunal for the assistance they gave in Borough of Hillingdon; Vicky Guedalla, Partner, obtaining access to the written determinations of Deighton Guedalla Solicitors; Simone Hugo, Legal unaccompanied or separated children or young Services Commission; Douglas Joy, Solicitor, Hereward people who had appeared before the Immigration & Foster Solicitors; Nancy Kelly, Head of Interna- Appeal Tribunal in 2003/2004. tional and U.K. Policy, Refugee Council; Selam Kidane, Refugee Project Consultant,British Association of Adoption and Fostering; Richard Knight, Team Leader, Asylum Seekers and Reception Team, Nottingham City Council; Sarah Lerner, Partner,Hereward & Foster Solicitors; Hannah Lily, Legal Protection Officer, UNHCR(U.K.); Lisa Nandy, Policy Adviser, 5 Contents Chapter1 | 9 Chapter5 | 55 Introduction Age Disputes: A Barrier to Entering a Child Specific Asylum Determination Process 1.1 Research Objectives | 14 1.2 Research Methodology | 15 5.1 Policy and Procedures for Determining Age | 57 1.3 Structure of the Report | 16 5.2 The Kent Model | 59 5.3 Local Authority Age Assessment | 60 Chapter2 | 19 5.4 Best Practice: A Holistic Approach | 61 Unaccompanied or Separated Children Arriving in the United Kingdom Chapter6 | 67 Detention of Unaccompanied 2.1 Definitions Used in the United Kingdom | 19 or Separated Children 2.2 Statistical Data | 21 2.3 Countries of Origin | 24 6.1 Detention in the United Kingdom | 67 2.4 Entering the United Kingdom: 6.2 Criminalization of Unaccompanied Juxtaposed Controls | 26 or Separated Children | 72 2.5 Access to Asylum | 26 Chapter7 | 77 2.6 Methods of Entry | 27 Accommodation and Care 2.7 Private Fostering Arrangements | 30 of Unaccompanied or Separated Children M O Chapter3 | 35 7.1 Providing Accommodation | 77 D G National Legal Framework 7.2 Unaccompanied and Separated Children’s N I Psychiatric and Psychological Needs | 84 K 3.1 The Legislative Framework | 35 D TE 3.2 The Policy Framework | 36 Chapter8 | 89 I N U The Need for a Legal Guardian Chapter4 | 41 | NE Monitoring Entry To Provide Protection 8.1 Dual Role of the Legal Representative | 90 O L 8.2 Government Measures on A 4.1 Role of the Immigration Service | 41 Legal Representation | 91 M U 4.2 Amendment of the Immigration Rules | 43 8.3 Role of a Legal Guardian | 94 L Y S 4.3 Tackling Child Trafficking | 44 A G N I K E E S 6 Chapter9 | 99 Chapter13 | 163 Applying for Asylum Appeals: Processes and Outcomes 9.1 Making an Application for Asylum | 99 13.1 Best Practice When Hearing Appeals by Unaccompanied or Separated Children | 163 9.2 The Screening Process | 100 13.2 Determining the Appeal | 164 9.3 Completing the Initial Asylum Application Form | 104 13.3 Role of the Home Office Presenting Officer | 166 13.4 Decisions on Appeals | 168 Chapter10 | 111 13.5 The Immigration Appeal Tribunal | 173 The Determination Process Chapter14 | 177 10.1 The Asylum Interview | 111 Policy and Practice Recommendations 10.2 Making the Determination | 116 14.1 Conclusion | 177 Chapter11 | 127 14.2 Outlining the Protection Deficits Outcomes of Asylum Applications and the Way Forward | 178 11.1 Being Granted Asylum Without APPENDIXES a Need to Appeal | 127 11.2 Refusal of Asylum | 129 Glossary of Terms | 206 11.3 Alternative Protection | 131 Legislation and Cases Cited | 207 11.4 Voluntary Returns to Country of Origin | 134 Bibliography | 208 11.5 Forced Returns to Country of Origin | 136 Chapter12 | 143 Appeals: Right to Appeal and Representation 12.1 The Right to Appeal | 144 12.2 The Quality of Legal Representation | 148 12.3 The Effect of the Legal Services Commission Merits and Means Tests | 150 12.4 Ignorance in Relation to Child Specific Persecution | 154 12.5 Age Disputes and the Appeal Process | 156 12.6 Pre-Hearing Review | 157 7 M O D G N I K D E T I N U | E N O L A M U L Y S A G N I K E E S 8 C H A P T E R 1 Introduction Thousands of unaccompanied or separated children arrive and claim asylum in the U.K. each year. Many of them survive arduous journeys from persecutors and war zones in a search for safety; some flee abusive treatment by family or close associates; others seek escape from human traffickers. This phenomenon presents a challenge to the Government and highlights its ambivalent attitude to international human rights law. It requires government officialsto temper the exclu- consulting on the formulation of a U.K. Action Plan sionary and hostile stance that pervades the immigration against Human Trafficking.4 control system with a concern for the best interests U.K. norm setting activity isnot restricted to of the child migrants. It places rigid border control in general international treaties. A number of very tension with a rights respecting attitude that prioritizes specific pieces of guidance have been produced by the protection of the individual. On paper the U.K. government bodies recommending good practice in has signed up to this latter approach, as an active relation to the determination of applications from member of the international community. Both the unaccompanied or separated children.The Immigra- Refugee Convention1and the European Convention on tion Service has provided immigration officers with Human Rights2have been incorporated into domestic a manual entitled Best Practice: Unaccompanied law. The U.K. has ratified the United Nations Con- Minors: Unaccompanied asylum and non-asylum vention on the Rights of the Child3and is presently seeking children5and laterGuidance on Children 9