RWA0014 Refugee and Migrant Children’s Consortium

Introduction

1. The Refugee and Migrant Children’s Consortium (RMCC) is a coalition of over 60 organisations, working collaboratively to ensure that the rights and needs of migrant and refugee children are promoted, respected and met in accordance with relevant domestic, regional and international standards.[1] RMCC members have a number of concerns about the government’s plans to remove people seeking asylum to Rwanda but since the scheme’s announcement has focused on raising awareness of the potential impact of the scheme on unaccompanied children.

Protections for those at risk of removal from the UK

2. The objective of the ‘Memorandum of Understanding between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Rwanda for the provision of an asylum partnership arrangement’ (MoU) was “to create a mechanism for the relocation of asylum seekers whose claims are not being considered by the United Kingdom, to Rwanda”.[2] Alongside the MoU, the Home Office has set out in domestic policy that it will only remove to Rwanda those individuals whose asylum claims have been deemed ‘inadmissible’ on the basis that they could have claimed claim asylum in another country through which they passed en route to the UK.
3. The Home Office’s policy on inadmissible claims makes clear that unaccompanied asylum seeking children are “presently treated as not suitable for third country inadmissibility action”. This includes “individuals whose age is doubted but who are being treated as children under the Assessing Age instruction”.[3]
4. However, there are no safeguards in place for children who are treated as adults after a short visual assessment by border officials. Many children who come to the UK on their own from countries such as Afghanistan, Sudan and Eritrea are unable to show official identity documents, such as passports or birth certificates, because they have either never had them in the first place; have had them taken from them; lost them when fleeing or had them destroyed; or have been forced to travel on false documentation. Without ID it is extremely difficult to determine a child’s age. The Home Office will come to a view on age simply based on an individual’s ‘appearance and demeanour’[4] – deciding either to treat them as a child but ‘dispute’ their age and refer them to a local authority for further assessment; or treat them as an adult (if their “physical appearance and demeanour very strongly suggest they are significantly over 18”) and move them straight to adult accommodation/detention.
5. RMCC members regularly see children as young as 14 treated as adults by the Home Office and placed in immigration detention or alone in adult accommodation.[5] The Immigration Minister confirmed that any age dispute “must be concluded, of course, before someone is relocated to Rwanda”[6] but there have been a number cases of children who have been detained as adults being issued with ‘notices of intent’ to remove them to Rwanda.[7]
6. The MoU contains not mention of children and no explicit assurances regarding the inclusion or exclusion of children for consideration in transfer. Under the MoU, the UK is responsible for initial screening of asylum seekers prior to requesting their approval for transfer. Following the screening, which must commence “without delay”, the UK is required to provide Rwanda with information about any individual whom it proposes to transfer, including details of any “special needs that they may have that may need to be accommodated in Rwanda”, “any health issues”, “any security issues”, as well as details of the individual’s identity and any biodata.[8] As acknowledged by the Committee in its call for evidence, Article 5.1 of the MoU does not impose an obligation on the UK to provide legal assistance during the screening of asylum seekers before relocation to Rwanda
7. The Home Office has argued that “all individuals considered for relocation to Rwanda will be screened and have access to legal advice” but oral evidence given to the Home Affairs Select Committee by RMCC members has highlighted that this is not the case.[9] Recent arrivals in the UK are being detained without any screening for vulnerabilities and with no understanding of what is happening to them. They are told that they may be sent to Rwanda and have only seven days in which to access legal advice and respond to the very many complex, novel, legal and factual issues that arise in these cases. After that, decisions are served with only five or six working days’ notice being given of removal to Rwanda. This is an impossibly short time period for people to effectively respond and detainees frequently struggle to access the Detained Duty Advice scheme or receive poor advice. They are often entirely reliant on NGOs who go into immigration removal centres to provide support and who are often over-stretched and at capacity. The MoU, the notice of intent, the inadmissibility notice and the information pack do not set out that unaccompanied children should not be sent to Rwanda.

8. Young people who are treated as significantly over the age of 18 will generally find it difficult to obtain relevant expert advice on age and age assessments, whether they are placed in adult accommodation or adult detention. They may need advice from a community care lawyer. They will need support to access this – either from an immigration adviser who is aware of the need to signpost or from a support organisation that understands how to help a young person to access such advice. There is a significant lack of community care solicitors across the country and there can be significant delays in receiving advice where the young person is signposted. This is particularly important in cases where young people can be caught up in the Rwanda policy, as their need will be even more urgent. It is crucial that those young people initially considered to be significantly over the age of 18 are given legal advice on age from a community care solicitor. Otherwise there remains a significant risk of children wrongly assessed as adults erroneously being removed from the UK.

9. As one Refugee Council Adviser explained:

“We receive a high number of referrals mainly from adult accommodation for children whose age has been disputed by the immigration officer on arrival. [When the policy first started] we had a referral for two children in a detention centre. I visited the individuals, made a referral to local authority, and they took them into care. They were very worried, these kids. Very, very depressed, very emotional, lack of energy, lack of sleep. They just didn’t know what would happen to them, all they were thinking about was Rwanda.

The problem with children in detention, obviously the Home Office treat them as an adult. On the same day on arrival they will be issued with a notice of intent. They have seven days to make representation… If we don’t come across a child in detention, he doesn’t have representation, and after seven days, the Home Office will issue a ticket and a date for removal. The Rwanda cases have been the most challenging ones since I started. The reason is the pressure of the time…we often get the referral when the seven days is almost expired. Trying to get everything done within 24 hours – that is a serious task!”[10]

10. Data collected by the Helen Bamber Foundation paints a worrying picture: figures from just 64 local authorities show that in January to March 2022, 211 young people were referred to children’s services after having been sent to adult accommodation/ detention. Two thirds were found to actually be children - meaning that in just three months nearly 150 children already had been placed in adult accommodation or detention and would have been at risk of removal to Rwanda.[11] There may be many more who have not been identified because they did not know they could seek an assessment by a local authority or have been referred but not monitored because many local authorities do not capture this data.

11. Clearly the Home Office policy on deciding age is leaving children at significant risk and the MoU does not contain the necessary assurances to ensure that removals to Rwanda will take place in a manner which ensures the safety of those relocated.

Compliance with international law

12. The Rwanda agreement may breach the UK’s positive obligations to victims of trafficking and contemporary forms of slavery under article 4 of the ECHR, read in conjunction with the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT), including the duty to investigate without delay and take operational measures to protect potential victims, where there are sufficient indicators available of circumstances which give rise to a credible suspicion of a real risk of trafficking or exploitation.[12]
     
13. The positive obligations arising under Article 4 means that the UK government should ensure that victims of trafficking are provided with assistance and protection. However, it is clear that the screening that takes placed before deciding on whether an individual may be transferred to Rwanda but this is not sufficient to identify vulnerabilities, including where someone is a child and/or victim of trafficking.[13]

14. ECAT also sets out at Article 10.4 that ‘When the age of the victim is uncertain and there are reasons to believe that the victim is a child, he or she shall be presumed to be a child and shall be accorded special protection measures pending verification of his/her age.’ (Emphasis added). The RMCC would argue that this is clearly not being implemented by Home Office staff.
15. Given there are currently no special protection measures for those deemed as adults by border officials, the RMCC believes the implementation of this MoU is not compliant with the UK’s obligations under international law.

16. We are extremely concerned that due to the government’s flawed approach to age disputes, there is a significant risk that children will be removed to Rwanda. It is crucial that those young people who have been determined to be over 18 by the Home Office are supported to obtain legal advice and are protected from inadmissibility procedures while they have an ongoing right to challenge the decision made on age.

Recommendations:

17. The RMCC has made the following recommendations to the government:

• Where a person has claimed to be a child but is being treated as an adult by the Home Office, the Home Office must not issue a ‘Rwanda removal notice’ until confirmation is received from their legal representative that they have not been, or will not be, referred into the care of a local authority.
• Where a person has been assessed to be an adult by a local authority or the National Age Assessment Board, the Home Office must not initiate or continue with the inadmissibility process until the timeframe for challenging the decision via judicial review or appeal has passed, or the challenge/appeal has been heard and decided
• Where a person has been issued a ‘notice of intent’ and is then subsequently accepted into children’s services as a child, the Home Office should confirm that their asylum claim will subsequently be deemed admissible. The process that will be followed should be set out and publicly available. 
• The Home Office must publish separate statistics on the number of people claiming to be children who border officials have assessed to be adults on the basis that their physical appearance and demeanour very strongly suggested that they were significantly over 18 years of age and put in place monitoring processes so it can check what happens to those individuals.