Asylum Aid s submission to the Joint Committee on Human Rights The human rights of unaccompanied migrant children and young people in the UK

Transcription

1 Asylum Aid s submission to the Joint Committee on Human Rights The human rights of unaccompanied migrant children and young people in the UK 23 October 2012 Asylum Aid, Upper Street, London N1 1RY Tel: Fax: Website: Registered in England and Wales under the Companies Act 1985 as a company limited by guarantee no Registered office: Club Union House, Upper Street, London N1 1RY Registered as a charity no

2 About Asylum Aid Asylum Aid is an independent, national charity working to secure protection for people seeking refuge in the UK from persecution and human rights abuses abroad. We provide free legal advice and representation to the most vulnerable and excluded asylum seekers, and lobby and campaign for an asylum system based on inviolable human rights principles. The Women s Project at Asylum Aid strives to obtain protection, respect and security for women seeking asylum in the UK by providing specialist advice and research and campaigning on the rights of women seeking asylum. Asylum Aid was highly commended in the Charity Awards Contact Information For further information on the issues covered by this document, please contact: Dr Russell Hargrave, Communications & Public Affairs Officer russellh@asylumaid.org.uk Tel: ext. 236 Further information about Asylum Aid s legal and policy work is available from our website: 2

3 Asylum Aid is an independent charity with twenty years experience. We provide front-line legal representation to people fleeing persecution and human rights abuse overseas, and we use this front-line experience to campaign for asylum reform at the heart of government. We have employed a dedicated Children s Caseworker for five years, to work intensively with unaccompanied children. They represent children seeking asylum before the UK Border Agency and before all the courts of appeal. This consultation response draws strongly on their experiences working with children in the asylum system. We have responded to four of the particular questions listed by the Committee on 12 th September, but have not responded to those which fall outside our expertise. Background In 2011, 1,398 unaccompanied asylum-seeking children (UASC) applied for asylum in the UK, although in recent years numbers have been closer to 3,000. Unaccompanied children constituted 7% of the total number of asylum applications last year. 1 Children seeking asylum are subjected to a particularly complex process, one with the potential to further disorient and distress young people who have already undergone a traumatic flight from their homes. The UK Border Agency (UKBA) can challenge the assertion that an asylum seeker is under 18. These age dispute cases are then referred to specialist social worker teams for an independent decision. This judgment by social workers can also be appealed to the High Court. A UKBA official will then decide whether to recognise the child as a refugee, or dismiss their claim. Even if the asylum claim is refused, a child will be granted Discretionary Leave to Remain (DLR) for thirty months or until they are 17 and a half years old, whichever is sooner. A child can then apply to extend their Leave on becoming an adult, a decision which will again be considered by a UKBA official. Unaccompanied children are granted refugee status at a rate substantially lower than adults. As the Children s Society described the process in September 2012: On average only 13% of unaccompanied minors were granted asylum over the past five years, while around 51% were given discretionary leave on the basis that there were no adequate reception facilities in their country of origin. 1 See UK Border Agency statistics: 3

4 Although grant rates improved somewhat in 2011, unaccompanied children continue to be granted refugee status at a noticeably lower rate than overall applicants. In 2011, 25% of asylum applications were granted refugee status compared to only 18% of unaccompanied children. 2 2 See Children s Society, Into the Unknown: Children s Journeys through the asylum process (2012), p. 3. Available at childrens-journeys-through-the-asylum-process--the-childrens-society.pdf 4

5 Is the current decision-making process on children s asylum claims satisfactory and does it represent the finding of a durable solution for each child in the UK, in accordance with the recommendations of the UN Committee on the Rights of the Child? Asylum Aid strongly believes that asylum decisions for children remain far from satisfactory. Our Children s Caseworker sees the UK Border Agency (UKBA) routinely and inappropriately refuse asylum applications by children on credibility grounds. Many of these refusals are then overturned on appeal. Although the Asylum Policy Instruction on Assessing an asylum application from a child is strong, children are left vulnerable because of how often officials depart from their own policy in practice. For example: When assessing evidence from children, UKBA officials routinely dispute their credibility by applying standards and norms which take little account of the child s age, maturity, and cultural background The UKBA is obliged under the policy instruction to be proactive in identifying and considering the information relevant to a child s asylum claim. Despite this, officials seldom engage in discussion with legal representatives about the nature of the case or the evidence needed to support it The UKBA is obliged under the policy instruction to apply the benefit of doubt more generously when dealing with a child. Despite this, officials regularly burden children with far too high a standard of proof, including children as young as years old In addition: The UN Refugee Agency (UNHCR) stress that concerns about credibility should be addressed during the asylum interview, but these concerns often appear for the first time in letters refusing asylum The UKBA is obliged to try and trace the family of a child asylum seeker. It often either fails to comply with this responsibility altogether, or seeks to do the bare minimum (for example, a single to the relevant post overseas) The UKBA asserts that the duty to safeguard the best interests of the child is incorporated into the Immigration Rules, and therefore does not need to be considered separately under section 55 of the Borders and Immigration Act However, this leaves major gaps where the best interest of a child are not likely to be considered: for example, the Immigration Rules suggest that Article 8 rights to a private and family life are engaged only after someone has been in the country for seven years, with the risk that binding relationships formed by a child before this might be discarded 5

6 Case study: children and burden of proof Maria not her real name was 17 when she fled to the UK from China. Her family had been persecuted as followers of the prohibited Falun Gong, and she was represented by Asylum Aid s Children s Caseworker. Maria and her mother had been arrested and detained in China, where her mother had died. Maria only escaped after paying a bribe. Maria s asylum application was refused by the UKBA, who argued that her account of persecution was not credible. She was accused of being very vague about the details of her family s persecution and the circumstances under which she arrived in the UK. But the judge who heard her appeal pointed out that the UKBA had made no allowance for Maria s age, and the fact that traumatised children should not be penalised for failing to provide the detailed, consistent information which might be expected of adults. Applying the appropriate lower burden of proof, the judge stated that there was no reason to doubt the account Maria had provided. Maria was recognised as a refugee but only after the judge had been required to correct the UKBA s failure to abide by its own policy. 6

7 Are unaccompanied children able to access the legal advice and representation necessary to ensure that they are able to have their voice heard in any judicial and administrative proceedings affecting them, and that their rights are upheld, in accordance with international standards? Should there be a system of guardians for unaccompanied and separated migrant children to ensure that their interests are represented? Asylum Aid strongly believes there are substantial obstacles that prevent unaccompanied asylum seeking children for accessing necessary legal advice. We have seen cases in which previous immigration solicitors have failed to meet some basic needs of the children they represent, including: Failure to attend substantive asylum interview with the child. There is specific funding for this available from the Legal Services Commission (LSC), in recognition that children need help and support that is not currently funded for adults. This failure is inexplicable, and can have deeply damaging consequences for children Failure to read back the interview record to the client, or make representations to the UKBA regarding the accuracy of the record Please see p. 7 for evidence on access to appeal for children seeking asylum This must be viewed in the context of a legal aid regime which includes perverse incentives that rewards quicker, less detailed work. While work with children is still paid at an hourly rate, Asylum Aid is concerned that the graduated fixed fee for most asylum work encourages a culture which maximises profits by spending less time on complex cases. 3 3 See 7

8 Are all unaccompanied migrant children made aware of the existence of a system for appealing against immigration and asylum decisions, and is this appeal system satisfactory? Asylum Aid believes that asylum seeking children need to be much better informed about their appeal rights. Our Children s Caseworker sees many cases where previous solicitors have made an inappropriate decision to merit fail. This means that solicitors decide not to represent a child at appeal. This happens especially often for upgrade appeals, where a right of appeal has been triggered because the child has been granted leave until they are seventeen and a half, but have been refused asylum. If an application is made for Further Leave to Remain, the failure to go to appeal and raise concerns at an earlier date is sometimes then held against the client This can leave an already vulnerable and confused child in legal limbo, and damage their chances of a fair hearing if later representations are made to the UKBA. 8

9 Are local authorities and immigration officials dealing satisfactorily with the issue of children and young people whose ages have been disputed, and has the Government considered developing a multi-agency panelbased approach to determining age assessments? Asylum Aid strongly believes that the UKBA s approach to age disputes is not satisfactory We are concerned that, for the children seen at Asylum Aid, the UKBA seems to dispute the age of child applicants as a matter of default. This appears to be the case even when there are not significant reasons to doubt the age of the applicant. With the exception of children who hold passports, our Children s Caseworker has only seen one client in two years whose age has not been disputed by the UKBA. The result for the children is very destabilising. Many are confirmed as children by social services, despite the UKBA s intervention. No asylum decision is made until an age dispute is settled, so this process can delay a decision significantly. It is delayed still further when the UKBA chooses to challenge the social services assessment in the High Court. This complex process can be extremely distressing for a child already embroiled in a confusing, adversarial asylum process. 9