Thu, 30 Jun 2011
By Ramby De Mello
Children asylum seekers arriving in the UK without their parents have been on the increase over the years. During their asylum claim they are provided with NASS support which ceases when their asylum claims are finally decided. A recurring problem these children face is when their asylum appeals have been determined by an immigration judge who finds that they are children and not adults. The Judge has to determine in the asylum appeal process whether a person is a child although in this case age may not be central to the decision as to whether he is a refugee.
In these cases the UKBA operates a policy as to who bears the responsibility for providing for their needs whilst they are children. If the person is a child then there is no problem because Social Services will provide accommodation and assistance under the Children Act until they become self sufficient or when they become adults.
If an Immigration judge decides that the person is a child the local authority is not bound by that finding and may arrive at a different conclusion and not make provision for the child. The child is left in limbo. The only remedy available for the child is to challenge that decision by way of judicial review. This article sets out briefly the obligation of UKBA and the local authority towards the child.
UKBA is required to make decisions on age for immigration purposes at the first stage of the asylum claim; local authority Social Services make similar decisions for the purposes of assessing eligibility to children’s support services under the Children Act.
There are occasions when the two agencies may make different decisions on age. To avoid this difficulty the UKBA has provided a policy how to tackle these problems.
There is a joint working protocol between UKBA and the Association of Directors of Social Services on behalf of local authorities.
The current protocol was agreed in November 2005 and is in the process of being revised to provide clearer points of contact.
Where UKBA and Social Services assessments cannot be reconciled they are in the first instance referred to the Asylum Complex Advice Team to attempt formal reconciliation with the local authority.
Where UKBA has accepted that an asylum applicant is a child, the case owners are required to ensure that the local authority is made fully aware of all available evidence of age. This should ideally take place before the local authority has made its decision on age.
If UKBA decides to accept that the applicant is a child, there is usually a discussion with the local authority before the decision is implemented.
If the local authority Social Services undertakes an age assessment they pass the information to UKBA who then considers it and if they accept the conclusion that the person is not a child then the decision is revised to reflect the findings of the Social Services.
Where an Immigration Judge accepts that the person is a child UKBA may be obliged to give effect to the decision by granting discretionary leave to remain. Before such a decision is taken there is discussion with the local authority.
Where the local authority does not accept that the applicant is a child, the UKBA case worker initially seek further guidance, on a case by case basis, from their Senior Caseworker and also refer to the joint working protocol document referred to above.
Where UKBA concludes that the applicant is a child, based for example on reliable documentary evidence, they then share their conclusion with the local authority.
Local authorities may sometimes base their assessment of age, or amend an age assessment, in the light of documentary evidence from the country of origin, or from documentation originating in another country. Social workers are trained to conduct age assessments.
The courts recognise that there is no denying the difficulties that a social worker is likely to face in carrying out an assessment of the question whether an unaccompanied asylum seeker is or is not under the age of 18. Reliable documentary evidence is almost always lacking in such cases. So the process has to be one of assessment.
However UKBA staff are advised to be careful about accepting the findings of social workers in some cases, since they do not generally have the necessary expertise to assess the authenticity of such documentation.
In these cases, it will usually be necessary for UKBA case owners to make their own enquiries about the authenticity of the documentation (which may affect UKBA’s decision on the individual’s age) and relay the findings back to the social worker.
Where an asylum appeal has been unsuccessful, but the Immigration Judge nevertheless finds the appellant to be a child, UKBA will accept this outcome in most cases, and proceed to treat the person as a child and grant the child discretionary leave to remain under UKBA policies.
In some cases UKBA may not accept the findings of the Immigration Judge that the person is a child because there are outstanding decisions which depend on age but on which the Judge has not taken into account. The SSHD must still give appropriate weight to the Judge’s consideration of age, and must have a sound and rational reason to depart from it. For example: where it is established that the Judge did not have before him a full and detailed local authority age assessment that concludes the appellant to be an adult it may be possible to prefer the local authority’s assessment to the decision of the Judge. There are complex issues involved in this event. One of the issues is whether the SSHD should appeal the Judge’s decision rather than adopt the findings of the local authority where they contradict the findings of the Judge that a person is a child.
When an Immigration Judge has found that an age disputed applicant is a child, and UKBA are minded to accept this view, the local authority is requested in writing by UKBA to review their assessment of age in light of the appeal outcome. In this instance the local authority is required to undertake its own assessment and must not fetter its discretion.
Those who are found to be a child by an Immigration Judge but who are found to be adults by the local authorities are best advised to obtain legal advice how to challenge these decisions made by the local authority. Presently the challenge against the local authority decision that the person is an adult is brought in the High Court by way of judicial review. If the case is not hopeless the Court may grant permission and then transfer the claim to the Upper Tribunal to consider. At these hearings public funding is available to instruct experts and solicitors and counsel to represent the child.
If the local authority does look after the child for a long period then their duty to that child continues beyond the age of 18 in some circumstances.
These cases are destined to be litigated owing to the limited resources of local authorities in providing assistance to asylum seeker children who are left to fend for themselves when their ages are disputed.
