Scottish Refugee Council Consultation Response Planning Better Outcomes and Support for Unaccompanied Asylum Seeking Children Border and Immigration Agency Response submitted by Scottish Refugee Council May 2007 Scottish Refugee Council 5 Cadogan Square, (170 Blythswood Court), Glasgow G2 7PH Tel: 0141 248 9799 Fax: 0141 243 2499 www.scottishrefugeecouncil.org.uk Registered charity no: SC008639
About the consultation In 2002 the Home Office set out their intention to reform the immigration process and care services for unaccompanied asylum-seeking children in the UK in their White Paper, Secure Borders Safe Haven 1. The Border and Immigration Agency have now proposed plans to carry out such reforms in a consultation paper: Planning Better Outcomes and Support for Unaccompanied Asylum Seeking Children. The stated aim of these reforms is to get the right balance between the need to manage immigration effectively and the promotion of child welfare for those in the immigration process. 2 Key areas addressed in the paper include: Identifying specialist local authorities to whom new unaccompanied asylum-seeking children (UASC) will be transferred upon arrival; Initial assessments which will include measures to identify the age of young asylum applicants through X-ray technology; Sponsoring preventative messages in countries of origin to deter non-genuine claims for asylum by young people; Changes to the process of determining asylum applications from young people; Curtailment of limited leave to UASC; Incentives to increase voluntary departure of UASC from the UK; and Enforced removal; This paper sets out Scottish Refugee Council s response to the proposed reforms. About Scottish Refugee Council Scottish Refugee Council provides help and advice to those who have fled human rights abuses or other persecution in their homeland and now seek refuge in Scotland. We are a membership organisation that works independently and in partnership with others to provide support to refugees from arrival to settlement and integration into Scottish society. We campaign to ensure that the UK Government meets its international, legal and humanitarian obligations and to raise awareness of refugee issues. We are also an active member of the European Council on Refugees and Exiles (ECRE), a network of over 80 refugee-assisting organisations across Europe. 1 We will do more to support local authorities by improving information exchange, communications and models of best practice in the care of unaccompanied minors, including preparations for return or for leaving care. We will explore opportunities for commissioning of suitable accommodation for unaccompanied minors who are 16 or 17 on arrival, subject to an assessment of individual needs, perhaps located away from the South East but with robust arrangements for social care under the Children Act. It is important that financial support to local authorities provides fairly for essential needs and encourages good value for money. Secure Borders-Safe Haven, Home Office, 2002 2 Liam Byrne, MP, Minister of State for Immigration, Citizenship and Nationality, P.5 2
Summary The key issues we raise in our response are summarised below: o There are several significant areas of policy and practice which are outside of the scope of the narrow consultation questions; o It is crucial that children s experiences are heard in the development of reforms to support services and the asylum determination process for unaccompanied asylum-seeking children; o Unaccompanied asylum-seeking children are children first and foremost. Any assessment of their needs should be identified through an individual assessment and not be presupposed by assumptions relating to their immigration status; o The best interests of each child under the UN Convention on the Rights of the Child have to be addressed; o The Border and Immigration Agency need to fully address the policy complexities between immigration and children s legislation as well as the complexities of devolved settlements in Scotland and in other nations of the United Kingdom; o To improve services to young people the Border and Immigration Agency should: o introduce guardianship; o assess the availability of appropriately trained child-specialist legal representatives; o properly prepare communities in which young people will be supported; o consider specific integration support for young people granted refugee status; o inform young people of their rights and entitlements; and o ensure better decision-making of unaccompanied asylum-seeking children s cases. Significant improvements have to be objectively evidenced before consideration can be given to end-of-the-process proposals such as voluntary return packages and enforced removal; o Scottish Refugee Council opposes any move to limit the fundamental right to seek protection in a safe country. 3
Introduction Scottish Refugee Council welcomes the opportunity to respond to this consultation exercise. We are happy for the information in this submission to be made public and are happy to discuss further the responses we raise in this paper. As a member of the Refugee Children s Consortium we fully endorse the submission made on behalf of the consortium. Our response is based on our experience of working with practitioners supporting unaccompanied asylum-seeking children in Scotland; unaccompanied children themselves and research we carried out into their needs and experiences 3. In addition, specifically to develop this response, we have discussed the planned reforms with voluntary and statutory stakeholders and held discussions with three focus groups of unaccompanied asylum-seeking children 4. Our response is divided into chapter headings which reflect those in the consultation document. In each chapter we provide comment on the issues raised. In general, we have limited our response to focus on the protection needs of unaccompanied asylum-seeking children. Chapter 1- Scope of the paper 1.1 The consultation process 1.1.1 We would like to raise concerns with aspects of the consultation process itself. Firstly, we believe that the questions put forward in the paper are very narrow in nature, focussed very much on local authorities, and stakeholders are not being asked to respond to significant areas of policy and practice which impact on unaccompanied asylum-seeking children. In addition, key areas such as the development of the minors segment of the New Asylum Model, the change to Discretionary Leave (DL) from 18 to 17½ and the introduction of residence and reporting requirements have already been introduced or are currently being legislated for. We do not believe that these issues have been adequately reflected in the consultation process. In particular we are concerned with how the minors segment of the New Asylum Model will link with the subsequent proposed changes to the way of supporting young people. Our response raises some of these issues under the relevant chapter headings. 1.1.2 Whilst we have made efforts to speak to our stakeholders and key partners about the proposed reforms, we believe that there will be relatively few responses from Scotland. This is due to the way the consultation was disseminated. We believe that it is paramount 3 This is a good place to live and think about the future The needs and experiences of unaccompanied asylumseeking children in Scotland, the Glasgow Centre for the Child and Society and Scottish Refugee Council, 2006 http://www.scottishrefugeecouncil.org.uk/pub/uasc_report 4 Three groups of young people were consulted aged between 14 and 20. These groups consisted of 17 young people. The first group were young people looked after and accommodated (under 16), the second were care leavers who were under 16 upon arrival; the third group were young people who were over 16 upon arrival. The young people in these groups wanted their own views to directly be heard by the Border and Immigration Agency, thus a separate response has been submitted on their behalf: Home is home if it was better there I would have stayed a Response from Young People in Glasgow. 4
that views are sought from a wider group of Scottish children s agencies. The Border and Immigration Agency must engage with other key stakeholders in Scotland who will be integral to any roll-out of the proposed reforms. 1.2 Lack of children s voices We are disappointed that the Border and Immigration Agency has not sought the views of those who will be most affected by these reforms, namely unaccompanied asylum-seeking children themselves. We believe it is crucial that the needs and experiences of young people are fully reflected in the development of all of the proposed reforms. 1.3 Children as children first and foremost 1.3.1 We welcome and support the statement by Liam Byrne MP in the Ministerial Foreword (p.5) that: The Government s commitment to improving outcomes for children in care applies equally to this group. Equally we support the statement in paragraph 6: Young asylum seekers, whether children in need or looked after children matter every bit as much as other young people in the context of meeting each and all of the five outcomes of the Every Child Matters framework. 1.3.2 Scottish Refugee Council believes it is fundamental to base any reforms to the service provision to unaccompanied asylum-seeking children on the fact that they are children first and foremost. However, the principle which is promoted in paragraph 6 is subsequently undermined in paragraph 7: Unaccompanied asylum seeking children have different and particular needs. The needs are then defined as: entering the care system at an older age; entering because of separation from families and not because of abuse or neglect; and their temporary stay in the UK. 1.3.3 We strongly contest the fact that unaccompanied minors should be differentiated because of any particular needs as suggested. The key fact is that every looked after child has unique needs which should be identified in their assessment and addressed in their care plan. This applies equally to this group. Any assessment of an unaccompanied asylumseeking child s needs should be identified in this way and not presupposed by a government department responsible for immigration control. This point was succinctly put by some of the service providers interviewed for the research project, This is a Good Place to Live and Think About the Future.., carried out on our behalf by the Glasgow Centre for the Child and Society into the need and experiences of UASC in Scotland 5 : Who are we to assume that an asylum seeker or refugee from the Congo has anything in common with an asylum seeker or refugee from Albania just like we can t assume that all Glaswegians want the same thing, we can t assume that all refugees and asylum seekers want the same thing either (Martine). 6 5 This is a good place to live and think about the future The needs and experiences of unaccompanied asylumseeking children in Scotland, the Glasgow Centre for the Child and Society and Scottish Refugee Council, 2006 6 ibid. p.55 5
I just think the biggest downfall at the moment is the suspicion and the negativity that is around this group of young people and they need to seen as having the rights and the same eligibility for services and support as every other young person in this country (Sinead, social services). 7 1.3.5 The commonality of need between all unaccompanied asylum-seeking children is their need for their claim for protection to be thoroughly assessed. This requirement needs to be addressed. However, the fundamental principle of service provision to them should centre on the fact that they are children first and foremost and should not be dictated by their immigration status. 1.3.6 Thus, it is very disappointing that the paper fails to further reference the Every Child Matter (ECM) principles and outcomes, nor in actual fact seek to address and answer the title of the paper itself: Planning Better Outcomes and Support for Unaccompanied Asylum- Seeking Children. What outcomes are these reforms seeking to achieve? Support for unaccompanied minors needs to be driven by the needs of the individual child and it is extremely regrettable that the consultation document does not explicitly define or elaborate on the ECM principles and outcomes relevant for them. 1.4 Devolved contexts 1.4.1 We are disappointed that the consultation paper pays fleeting reference to Scotland, its devolved institutions, differing practices and the different statutory and policy framework for child welfare north of the border: As the statutory and policy framework for child welfare differs between England, Scotland, Wales and Northern Ireland every effort is made to highlight where these different arrangements apply, but respondents will need to consider these territorial aspects when replying. (para.4) 1.4.2 We are not wholly convinced that every effort has been made by the Home Office to discern the impact of different legislation and regulations in the devolved nations. This is supported by the lack of any further substantial reference to Scotland in the paper. We have highlighted and mapped out the different legislative and policy framework in Scotland which impacts on unaccompanied asylum-seeking children in appendix 1 for reference. However, we firmly believe it is the responsibility of the Border and Immigration Agency to fully address not only the policy complexities and conflicts between immigration and childcare legislation but the complexities of devolved settlements in Scotland and other devolved nations. This recommendation is supported by our research where many service providers expressed frustration and a need for clearer guidance: a number of service providers were very frustrated by the way in which legislation passed by Westminster, and therefore applicable to the whole of the UK was being implemented in ways that often only referred to England and Wales and were ignorant of the Scottish context. Paula, a policy worker, for example, argued that she had to regularly tartanise UK legislation in order that it could be understood in the context of specifically Scottish policies 7 ibid. p.55 6
such as that of the Children (Scotland) Act 1995. The ambiguity between some Scottish and UK legislation can make it difficult to advance children s rights, especially due to the complexity of the system. 8 1.4.3 In 2006, The Scottish Executive asked Her Majesty s Inspectorate of Education in Scotland (HMIE) to coordinate the inspection of services provided for asylum-seeking children in Glasgow. This Joint Inspection was carried out in autumn 2006 to help ensure the quality of the services provided. This inspection report is expected to be published in this summer subject to a decision by the new administration in Scotland. It is important that the Border and Immigration Agency study this report carefully in light of the proposed reforms. Chapter 2 Why improvements need to be made 2.1 International protection The 1951 Refugee Convention and the United Nations Convention on the Rights of the Child 2.1.1 Scottish Refugee Council believes that any improvements to reforming services and asylum procedures for unaccompanied asylum-seeking children in the UK must be based on the UK s International Human Rights obligations. The paper references the protection offered by the 1951 UN Convention on Refugees (para.10) but fails to mention the rights afforded to children under the United Nations Convention on the Rights of the Child (UNCRC). Despite the UK Government s general reservation to the UNCRC 9, Scottish Refugee Council considers that UNCRC rights apply equally to all children on the territory of the UK. 2.1.2 This failure to acknowledge or respect the UNCRC is most evident in paragraph 12 of the paper: 8 P.94 9 The UK Government entered the following reservation on ratification of the Convention in 1991 in relation to the right to stay in the UK: The United Kingdom reserves the right to apply such legislation, in so far as it relates to the entry, stay in and departure from the United Kingdom of those who do not have the right under the law of the United Kingdom to enter and remain in the United Kingdom, and to the acquisition and possession of citizenship, as it may deem necessary from time to time. This reservation does not detract from the UK Government s duties towards refugee children under Article 22 of the Convention. As the Government stated in its second report to the UN, the reservation was targeted specifically at Articles 9 and 10: 7.31.3 It should be borne in mind that the chairman of the working group which drafted the Convention explicitly stated that article 9 on the separation of children from their parents was intended to apply to domestic law, and not to international situations; and that article 10 s family reunion provisions were not intended to affect the general right of states to establish and regulate their immigration laws in accordance with their international obligations. In other words, the Convention is not intended to establish any new rights in relation to immigration. 7.31.4 Notwithstanding this, to avoid argument about the extent to which the fine detail of immigration and nationality law is or is not in keeping with the letter or spirit of the statements, necessarily generalized, about children s rights contained in the Convention, the United Kingdom entered a reservation which made it clear, for the avoidance of doubt, that nothing in the Convention was to be interpreted as affecting the operation of United Kingdom immigration and nationality legislation. 7
it is not a solution to simply respect the person s wish to remain in the United Kingdom... ; and Preferences and expectations of individual young people can only be met to the extent that they fit with the requirements of immigration control. Both of these statements do not recognise the principle of best interests of the child which states that the best interests of the child will be at least a primary consideration in decisions made by legislative bodies and administrative bodies (Article 3.1). Considering best interests is not simply about allowing a child to remain in the UK because that is their wish. However, that wish must be carefully and thoroughly considered in each individual case alongside the requirements of immigration control. Such statements reflect a political desire and fail to respect the UK s international obligations to unaccompanied asylum-seeking children as children. 2.2 Improving service provision by creating specialist authorities 2.2.1 There is no doubt that there are huge variations in terms of service provision and specialist services across the UK. For example our research highlighted the poor provision for 16-17 year old unaccompanied minors. It also highlighted the fact that service provision under the current arrangements varies dramatically across Scotland in particular in local authorities which have less contact and experience working with unaccompanied asylum-seeking children. As a result they have far fewer appropriate services on offer such as social work allocation, standards of accommodation, access to legal representation, health and education and poorer practitioners knowledge. Therefore, in principle we are not opposed to the introduction of a system of dispersing minors to authorities where specialist services can be developed. Nonetheless, it should be noted that many of the practitioners interviewed in the research stressed that experience does not necessarily equate with expertise and there was a need for investment in working with unaccompanied asylumseeking children in Scotland. 2.2.2 The primary goal however of any reforms as we have stated should be about ensuring that the best interests of the child (Article 3.1) and views of the child (Article 12) are central to any decision. Thus, whilst we welcome a development towards standardisation and consistency, this must be flexible enough to take into account the individual needs of each young person. 2.3 Factors which need to be put in place to improve services 2.3.1 Guardians i) We are disappointed that the consultation paper has not taken the opportunity to introduce guardianship. Every unaccompanied asylum-seeking child should be afforded a legal guardian to guide them through the complexity of the UK asylum system and ensure that their best interests are identified and taken into consideration. We are not convinced by the Border and Immigration Agency s contention that they are fulfilling 8
their requirements under Article 19 of the Reception Directive and Article 30 10 of the Qualification Directive by stating that such responsibilities already lie with local authorities as corporate parents. 11 The local authority is simply not in a position to carry out the role as set down in the Qualification Directive or in the General Comment of UN Committee on the Rights of the Child. 12 Moreover, this comment also states that Guardians should not have any potential conflict of interest: Agencies or individuals whose interests could potentially be in conflict with those of the child s should not be eligible for guardianship. 13 ii) Proposals in this paper which assume closer working of social workers with the Border and Immigration Agency, such as writing pathway plans which are premised on the assumption that the young person will be returned to their country of origin clearly show a conflict of interest. iii) The need for guardianship is even more persuasive in light of developments such as the move to carry out face-to-face substantive asylum interviews with children over the age of 12 in the new determination process; the speed of the process; and the proposed reforms in relation to returns. iv) Whilst we respect the valuable work that is carried out by the Refugee Council s Children s Panel to advocate for individual children through the asylum process, its geographical coverage is limited and does not cover Scotland. Neither is it a substitute for full guardianship. 10 1. As soon as possible after the granting of refugee or subsidiary protection status Member States shall take the necessary measures, to ensure the representation of unaccompanied minors by legal guardianship or, where necessary, by an organisation responsible for the care and well-being of minors, or by any other appropriate representation including that based on legislation or Court order. 2. Member States shall ensure that the minor's needs are duly met in the implementation of this Directive by the appointed guardian or representative. The appropriate authorities shall make regular assessments. Council Directive 2004/83/EC of 29 April 2004on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. 11 We are satisfied that the comprehensive provision in UK law for the care and protection of unaccompanied children satisfies the provisions of the Directive. The Children s Act 1989 requires the local authority to look after any person aged 17 or less who has no parent or carer. These local authorities specialise in child care and are independent from IND. These bodies will carry out the regular reviews as required by the Directive. The Local Authorities duty of care to children in need within their areas is the same for all children, regardless of immigration status. A Summary of Responses on the Home Office Consultation Paper on the Implementation of Council Directive 2004/83/EC. 12 Para.33: UN Committee on the Rights of the Child General Comment No. 6 (2005) on the Treatment of Unaccompanied and Separated Children Outside their Country of Origin 13 Ibid 9
v) Many organisations have called on the UK Government to introduce guardians including UNHCR, the Separated Children in Europe programme and the Joint Committee on Human Rights. We strongly support their calls and we recommend that the Government introduce guardians in the UK. 2.3.2 Availability of appropriately trained legal representatives i) The availability of appropriately trained and qualified legal representatives is a key factor to ensuring improved services to unaccompanied asylum-seeking children, even more so in light of the speed of asylum decision making under the New Asylum Model. We believe that this should be one condition essential to any local authority being included as a specialist authority. We contest that this should not be seen as a criterion which is likely to be relevant (para. 58), but rather the availability of quality (child and gender specific) legal advice is of paramount importance and the proximity of a specialist authority to quality specialist legal practitioners must be a fundamental factor in the selection of any authority. ii) It should be noted that this is not within a local authority s powers to determine availability or quality. Furthermore, the Legal Services Commission (LSC) has no jurisdiction in Scotland. Therefore, the Border and Immigration Agency has a clear duty to ensure that any authority selected in Scotland as a dispersal area is able to meet the demands for children s immigration advice. Thus BIA should enter into joint discussions at the earliest opportunity with the Scottish Executive, the Law Society of Scotland, COSLA Strategic Migration Partnership and the Scottish Legal Aid Board to ensure availability, adequate funding and appropriately trained legal practitioners. This should be carried out before any authority in Scotland is selected. 2.3.3 Ensuring better decision-making in children s asylum claims i) Many of the proposals put forward in this paper, such as enforced return and assisted voluntary return packages are predicated on the belief that there is a high degree of confidence in determining the claims for international protection of children. Whilst paragraph 10 states that Asylum applications are carefully considered the Border and Immigration Agency itself concedes that determining asylum applications from children needs to be improved. (para. 38) by more careful examination of the circumstances which led them to seek protection in the UK. ii) It is imperative that the Border and Immigration Agency improve decision making in relation to children. The consultation paper states that the number of unaccompanied asylum-seeking children granted refugee status or humanitarian protection is very low (para.40). The general thrust of the paper suggests that this is a sign of abuse of the asylum system by young people. Alternatively, this could be viewed as evidence of poor decision-making by the Border and Immigration Agency as supported by their acknowledgment above. iii) One key aim of the New Asylum Model was that it would lead to better decision making in claims for protection, including those of children. However, we have been concerned by the pace of development and implementation of the New Asylum Model segment for 10
minors. We believe that it was introduced at such speed in order to achieve the Ministerial target completion date of 1 April 2007 for the full implementation of the New Asylum Model rather than to ensure that all appropriate improvements were made. Very few discussions were carried out with stakeholders and there was no formal consultation. Stakeholders only became aware of it just a few weeks before it was introduced. iv) Whilst we acknowledge and welcome certain developments such as the introduction of a training manual for NAM case owners dealing with claims from children and mention of best interests and the inclusion of child specific persecution in the Children Asylum Policy Instruction (API), we believe that significant improvements need to be made in initial decision making. v) Under the New Asylum Model there will be specialist child case owners, but we are not convinced that the additional 5-day child-specific training, which is an add-on to the standard programme of training for NAM case owners, is wholly sufficient to deal with the complexities of children s cases. Nor are we are aware of plans for continued professional development focussing on child-specific issues. This need is highlighted in Paragraph 97 of UN General Comment 14. vi) Some of the comments from young people about their experience of the interview process highlight the difficulty and complexity of interviewing vulnerable young people: Just left the country because of war it all comes back to you. Repeated same questions, did not believe what I was saying about my story, asked tricky questions. They don t know the way you are feeling. Unwanted, could not speak the languages The telephone interpreter missed a lot of things. They should be present at the time. Just say yes and okay, agreeing with everything. Don t want to offend respect. I just laughing sometimes, nervously. vii) We are also concerned that no training and guidance has been provided to legal representatives or judges specifically concerning children s appeals. Paragraph 95 of the UN Committee Comment also raises the importance of training not just for case workers but for all official dealing with the asylum claims of UASC. 15 There is currently no accreditation for legal representatives to deal with children s asylum claims cases. We believe that this needs to be resolved. 14 Initial training programmes should also be followed up regularly, including thorough on-the-job learning and professional networks. General Comment No.6 2005 of the UN Committee on the Rights of the Child Para.97 15 Particular attention should be paid to the training of officials working with separated and unaccompanied children and dealing with their cases. Specialised training is equally important for legal representatives, guardians, interpreters and others dealing with separated and unaccompanied children. General Comment No.6 2005 of the UN Committee on the Rights of the Child Para.95 11
viii)an important aspect of ensuring that NAM caseowners are making correct decisions on young people s asylum claims is to monitor and evaluate those decisions. Whilst the UNHCR Quality Initiative Project has examined Home Office decision-making in adult claims, no study of children s cases has been made. ix) We believe that not only is it essential that such an audit is undertaken, but a wideranging evaluation of the new determination process needs to be undertaken to include all aspects of the process such as screening, interview, decision and appeal. Only then can there be confidence with demonstrable proof that the international protection needs of children are being met by the Border and Immigration Agency. x) In light of this, Scottish Refugee Council believes that the proposals outlined in the paper which will have a huge impact on children at the end of the asylum process, such as voluntary return packages, reductions to Discretionary Leave, Section 4-like provisions and increased forced removal, should be not be implemented until the Border and Immigration Agency can objectively evidence significant improvements in the decision making of minors cases. 2.3.4 Integration support The lack of any reference in the paper to integration support for children granted refugee status is disappointing. Despite the focus of the reforms on the premise that children s asylum claims will not be successful, some children are granted refugee status and humanitarian protection. There is a need for specific integration measures for this group. These should be considered prior to any roll-out. 2.3.5 Community preparation and media strategies It should be of fundamental concern to the Border and Immigration Agency that proactive strategies are put in place to prepare communities in which unaccompanied asylumseeking children will be supported. This is even more important in any new locations or where there will be a significant intake. Any transfer programme should learn from the experiences of local authorities with the dispersal policy of adult asylum seekers and families. 2.3.6 Detailed information about unaccompanied asylum-seeking children s rights and entitlements The Separated Children in Europe Programme s Statement of Good Practice recommends that separated children should be provided with accessible information about, for example, family tracing and the situations in their countries of origin. 16 This need for information was highlighted in our research which showed that many unaccompanied minors in Scotland were unaware of their rights, responsibilities and entitlements, the asylum system, social norms and services available to them. Many also had little understanding of the role of key people in their lives, such as social workers. This led Scottish Refugee Council in partnership with the Big Step to develop a handbook with and for unaccompanied asylum- 16 P.15 http://www.unhcr.org/cgi-bin/texis/vtx/home/opendoc.pdf?tbl=rsdlegal&id=415450694 12
seeking children in Scotland. We therefore believe that the information needs of young people need to be considered to improve delivery of services to them. Chapter 3 The Journey through the Asylum and Support System 3.1 Sponsoring key messages in country of origin 3.1.1 Scottish Refugee Council is concerned by the underlying principle of the UASC reform programme as stated in paragraph 23: We must safeguard the asylum system from abuse and do more to identify and deter those who are not in genuine need of asylum, while at the same time ensuring the best possible responses to those with a well-founded fear of persecution in their country of origin. This underpins everything we are doing in the UASC reform programme. 3.1.2 We firmly believe that the aim of any asylum determination system is to do the utmost to identify those in need of protection. We believe that by concentrating on abuses of the system, the system itself becomes abused as ultimately the focus shifts to deterrence and tackling exploitation rather than fulfilling its primary raison d être of determining the need for international protection from persecution. 3.1.3 The assumptions of abuse of the system are deeply worrying. They are not the experience we have as an organisation working with unaccompanied asylum-seeking children and are not supported by the research we carried out with children themselves and service providers. These were the main findings: Unaccompanied asylum-seeking children often experienced traumatic events in their countries of origin and many were brought to Scotland by an agent. The main reasons for seeking asylum included issues connected with war, political circumstances, and either the death or persecution of family members or the persecution of the child themselves. 17 3.1.4 In addition, whilst minors may be refused under the 1951 Refugee Convention and the European Convention on Human Rights, it does not necessarily equate that they have somehow abused the system. This is very disturbing language to use. We would like Border and Immigration Agency to qualify such statements evidentially. 3.1.5 We strongly oppose any move to limit the right to seek protection from persecution in a safe country. Thus, we do not support any of the proposed suggestions of sponsoring key messages in countries of origin. Such proposals are not evidentially based. Research carried out on behalf of Scottish Refugee Council 18 found that half of the children who took 17 p.01 18 This is a good place to live and think about the future The needs and experiences of unaccompanied asylumseeking children in Scotland, the Glasgow Centre for the Child and Society and Scottish Refugee Council, 2006. 13
part knew very little about Scotland and did not know they were travelling here prior to arrival. 3.1.6 This was mirrored in the discussions we had with three groups of unaccompanied minors to discuss this consultation: I had heard of England but did not know anything about it ; Knew nothing about Glasgow or Scotland ; The guy who brought me here told me I would be in a safe country, they did not tell me I would not get any money or support. When you re from a dangerous situation, all you are thinking about is leaving it scary when a stranger is telling you to follow them, but you have to think it is safer than staying where you are. 3.1.7 Moreover, whilst some children have a part in the decision-making process to flee their countries of origin, many do not: Some like Karen said they made the decision themselves to leave their country of origin, but it was clear that many of the children do not have a lot of say with regard to such decisions. 19 3.1.8 We find it deeply regrettable that in a paper which should be seeking to ensure appropriate safeguards and proper outcomes for a vulnerable group of children, the Border and Immigration Agency talks about the need to safeguard the asylum system from abuse by those very children. 3.2 Initial assessments including Age Determination 3.2.1 Scottish Refugee Council welcomes the recent detailed research carried out on behalf of the Immigration Law Practitioners Association into age disputes and assessments: When is a child not a child? Asylum, age disputes and the process of age assessment. 20 In particular, the research found strong evidence that the rise in age disputes is linked to the prevailing cultures of cynicism and disbelief among immigration officers and at some social services departments. 21 3.2.3 This cynicism was also very much evident in our research report: As Paula provocatively suggested, a number of service providers are unprofessional in their assumptions about the ages of some of the unaccompanied asylum-seeking children they work with: 19 ibid, p. 38 20 When is a child not a child? Asylum, age disputes and the process of age assessment, ILPA, 2007, http://www.ilpa.org.uk/ 21 ibid, p.2 14
Paula: I hate this, but I have heard this comment before aye, 16, but he is shaving twice a day! But to me that is someone who has been in the job too long, you know, change your job (policy worker) 22 3.2.4 We endorse the report and urge the Border and Immigration Agency to seriously consider its recommendations. 3.3 Foster placements for children aged 16 and over Unaccompanied asylum-seeking children should not be discriminated against because of their immigration status and thus the same principles which apply to young people in Scotland should apply to them. In Scotland, a young person who is in foster care at age 16 should continue to be fostered after 16 if that is deemed to be the best place for them to live paying due consideration to their views. If an unaccompanied minor is over 16 when they arrive in Scotland their care needs should be assessed similarly to those of any child. Section 25 of the Children (Scotland) Act 1995 places a duty on local authorities to support and accommodate those children where there is no parental responsibility for them. This should be an individual assessment on what is in their best interest with their views respected. 3.7 Care planning vs. immigration considerations We firmly believe that immigration considerations should be better aligned to care planning and not vice versa. Planning for young people needs to be driven by the needs of the individual child and not by the asylum process. 3.8 Other issues when the young person reaches 18 The paper is silent about the group of young people who will be refused asylum and have their appeal refused, but will remain in the UK because they cannot be returned. Scottish Refugee Council believes that such young people should be granted leave. Chapter 4 The Specialist Authority 4.1 We believe that in terms of model service specifications and procurement of services the Border and Immigration agency should ensure that all service provisions is informed by the principles of the UNCRC. Contact: Gary Christie Policy and Research Manager Scottish Refugee Council Tel: 0141 248 9799 gary.christie@scottishrefugeecouncil.org.uk 22 This is a good place to live and think about the future The needs and experiences of unaccompanied asylumseeking children in Scotland, the Glasgow Centre for the Child and Society and Scottish Refugee Council, 2006, p. 84 15
Appendix 1 The Scottish context Below is a list of some of the Scottish legislation, regulations and policy frameworks which impact on unaccompanied asylum-seeking children in Scotland. Overview 1. Getting it Right for Every Child 2. Key Scottish legislation and regulations and policy frameworks 2.1 The Children (Scotland) Act 1995 2.2 The Children (Leaving Care) Act 2000 Support and Assistance of Young People Leaving Care (Scotland) Regulations 2003 2.3 Commissioner for Children and Young People (Scotland) Act 2003 2.4 Education Acts 2.5 Education regulations 3. Forthcoming 4. Other Scottish legislation affecting children 5. Other policy initiatives in Scotland affecting children 16
1. Getting It Right for Every Child Getting it Right for Every Child is a reform programme designed to ensure that every child gets the help they need when they need it. Help should be proportionate, appropriate and timely. Below is the vision of the programme. Vision for children The vision provides an overarching statement of Ministers expectations for children applying across portfolio, agency and professional boundaries it is not just about processes but about achieving better outcomes for children. It takes the UNCRC as its starting point. Our ambition for the children of Scotland is that they should be ambitious for themselves and be: o confident individuals o effective contributors o successful learners o responsible citizens To achieve our vision, children need to be: Safe: Children and young people should be protected from abuse, neglect and harm by others at home, at school and in the community. Nurtured: Children and young people should live within a supportive family setting, with additional assistance if required, or, where this is not possible, within another caring setting, ensuring a positive and rewarding childhood experience. Healthy: Children and young people should enjoy the highest attainable standards of physical and mental health, with access to suitable healthcare and support for safe and healthy lifestyle choices. Achieving: Children and young people should have access to positive learning environments and opportunities to develop their skills, confidence and self esteem to the fullest potential. Active: Children and young people should be active with opportunities and encouragement to participate in play and recreation, including sport. Respected and responsible: Children, young people and their carers should be involved in decisions that affect them, should have their voices heard and should be encouraged to play an active and responsible role in their communities. Included: Children, young people and their carers should have access to high quality services, when required, and should be assisted to overcome the social, educational, physical, environmental and economic barriers that create inequality. 17
2. Key legislation and regulations for unaccompanied asylum-seeking children in Scotland 2.1 The Children (Scotland) Act 1995 This act sets out the ways in which children in Scotland should be supported, protected, accommodated and cared for. It also identifies the circumstances in which a child may be accommodated by a local authority. This includes situations where no-one has parental responsibility for a child under 16 (Section 25) and the manner in which accommodation is provided for children looked after by a local authority (Section 26). Furthermore this Act also seeks to safeguard and promote the welfare of children, up to the age of 18, who are in need (Section 22). Among the duties that the authority has towards such accommodated children are: to safeguard and promote the child s welfare; promote contact with parents; take account of the child s views; give consideration to the child s religious persuasion, racial origin and cultural and linguistic background. The Act also requires local authorities to ensure that they have taken into account a child's racial, linguistic, cultural and religious identity within their service (including education) provision. The CARIS website gives a detailed breakdown of this Act and its interface with immigration legislation: http://www.savethechildren.org.uk/caris/legal/legframework/lf_01.php 2.2 The Children (Leaving Care) Act 2000 Support and Assistance of Young People Leaving Care (Scotland) Regulations 2003 This act in part also applies to Scotland and states that a child who was previously looked after and accommodated by a local authority is entitled to financial support from that local authority. This Act was followed by the Support and Assistance of Young People Leaving Care (Scotland) Regulations 2003 which places a requirement on Scottish local authorities to provide a range of other preparation, planning and support packages for young people. There are no relevant court cases in Scotland concerning the rights of unaccompanied asylum-seeking children under the Children (Scotland) Act 1995, but the Hillingdon judgement 2003 which set out the responsibilities of the local authorities in England under the Children Act 1989 and the Children Leaving Care Act 2000 to provide accommodation to unaccompanied asylum-seeking children who were previously looked after is regarded as persuasive. 2.3 Commissioner for Children and Young People (Scotland) Act 2003 The role of the Commissioner for Children and Young People in Scotland includes a duty to promote and safeguard the rights of children in Scotland up to the age of 18 (or 21 if they have at any time been looked after by a local authority). The role extends to UASC in their 18
status as children, and so the Commissioner s role links in with other international and national legislation about children s rights and best interests. 2.4 Education Acts 2.4.1 Education (Scotland) Act 1980 and amendments The Education (Scotland) Act 1980, as amended, states that all children, which by implication includes asylum-seeking and refugee children, are entitled to school education. 2.4.2 The Standards in Scotland s Schools etc. Act 2000 The Additional Support for Learning Act 2004 The Standards in Scotland's Schools etc. Act 2000 and Additional Support for Learning (Scotland) Act 2004 place additional duties on local authorities and schools to secure an appropriate education for all children. 2.5 Education regulations Asylum Seekers, Refugees, Migrant Workers and EU Nationals- A Guide to Funding 2006-2007 for Practitioners Giving Advice, Scottish Executive These guidelines set out the Scottish Executive s funding arrangements for asylum seekers and refugees to participate in further education. The 2006 guidelines extended the availability of Education Maintenance Allowances (EMA) and Independent Learning Accounts (ILA) to those granted Discretionary Leave. This would include unaccompanied asylum-seeking children. http://www.scottishrefugeecouncil.org.uk/info/educational_funding 3. Forthcoming 3.1 HMIE Inspection on Services to Asylum-Seeking Children The Executive has asked Her Majesty s Inspectorate of Education (HMIE) to coordinate the inspection of services provided for the children of asylum seekers in Glasgow up to the point where their request for asylum is granted or the point where they are removed. This Joint Inspection was carried out in autumn 2006 to help ensure the quality of the services provided the inspection report is expected to be published in summer 2007. 3.2 Children s Services Bill The previous Scottish Executive consulted on introducing a Children s Services Bill. The aim was to take forward aspects of the Getting it Right for Every Child. 4. Other Scottish legislation affecting children 4.1 Regulation of Care (Scotland) Act 2001 improves protection for children through independent regulation of care services provided to children. It also establishes regulation of, and education and training for, the workforce. 19
4.2 Education (Disability Strategies and Pupils Educational Records) (Scotland) Act 2002 places a duty on local authorities and schools to plan progressively to improve access to education for pupils with disabilities. 4.3 Mental Health (Care and Treatment) (Scotland) Act 2003 establishes new arrangements for the detention, care and treatment of persons who have a mental disorder. When these functions are carried out in respect of an under 18, it provides that they must be done in the manner which best secures the welfare of the child. 4.4 Protection of Children (Scotland) Act 2003 aims to improve the safeguards for children by preventing unsuitable people from working with them. The Act allowed Scottish Ministers to set up the Disqualified from Working with Children List which came into operation in 2005. It is now an offence for an organisation to knowingly employ a person in a child care position if that person is disqualified from working in such a position. 4.5 Vulnerable Witnesses (Scotland) Act 2004 allows child witnesses under 12 in certain circumstances to give evidence without the need to attend court. 4.6 Prohibition of Female Genital Mutilation (Scotland) Act 2005 re-enacts and gives extra-territorial effect to the provisions of the Prohibition of Female Circumcision Act 1985. It also makes additional forms of FGM unlawful. 4.7 Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 introduces a new grooming offence and strengthens the law protecting children from those who would sexually abuse or exploit them. 5. Other policy initiatives affecting children in Scotland 5.1 Ambitious Excellent Schools: action to improve the quality of learning and teaching and quality of leadership, to raise ambition and improve the achievement of children. 5.2 Changing Lives: a five-year programme to transform social work services in Scotland to achieve better outcomes for all, including children. 5.3 Child Protection Reform Programme: the Executive s response to a wide-ranging audit and review of child protection services in Scotland. 5.4 Community Health Partnerships: are designed to make measurable improvements in local population health and to provide higher quality, accessible joined up services for local communities. CHPs have a lead role in the delivery of services for children at a local level. 5.5 Delivering a Healthy Future Action Framework for Children and Young People s Health in Scotland: a structured programme of actions in the key areas of activity relating to children s health in Scotland. 20
5.6 Health for All Children (Hall 4): a programme of child health surveillance, screening, immunisation and health promotion. 5.7 Health Promoting Schools: Ministers expectation is that all schools will be health promoting by 2007. 5.9 Hungry for Success A Whole School Approach to School Meals in Scotland: new standards for the provision of school meals, including nutritional standards, backed by Executive funding. 5.10 Integrated Children s Services Planning Framework: requires local agencies to plan collectively to produce a single plan of action to provide for and support children. 5.11 Integrated Framework for Assessment and Information Sharing: avoids duplication of time, effort and information when more than one agency is involved by having one assessment, one plan and one record for a child. The work on information sharing is complementary. 5.12 Let s Make Scotland More Active A Strategy for Physical Activity: a strategy to raise the activity levels of the Scottish population. 5.13 Mental Health of Children and Young people: A Framework for Promotion Prevention and Care: developed to assist local health, education and social work in planning and delivering integrated approaches to children s mental health and wellbeing. 5.14 National Strategy for Development of the Social Service Workforce in Scotland: A Plan for Action 2005-2010: sets out a vision for a competent and confident workforce. 5.15 see me is a national campaign to eliminate the stigma and discrimination which can be associated with mental illness. 5.16 Youth Work Strategy: designed to ensure that young people can access the information they need, participate in high quality experiences and opportunities, be empowered and engaged in youth and community activities. 21