Methoria — Written evidence (FAM0046)    

Methoria: First Rights; Equal Justice for Migrant Children

This submission to the Justice and Home Affairs Committee is made by the First Rights programme of Methoria, a UK registered charity, as part of its Equal Justice for Migrant Children (EJMC) project. 

EJMC proposes a model of justice for migrant children that respects the rights set out in the 1989 UN Convention on the Rights of the Child (CRC) and ratified by the United Kingdom, now without reservation.

It was founded by Catriona Jarvis and Syd Bolton and is assisted by Ciaran King, as our Legal and Administrative Consultant, also the Europe Litigation Officer at the AIRE Centre. Catriona Jarvis is a retired judge of the United Kingdom Upper Tribunal (Immigration and Asylum Chamber), former children’s lawyer and teacher. Syd Bolton is a children’s rights lawyer, a qualified (now non-practicing) UK solicitor and former legal and policy advocacy officer for refugee children. It has the benefit of a wide range of experienced legal and social work professionals as its Advisory Board.

The EJMC project puts the principle of the best interests of the child (BIC) at the centre of all decision-making processes. It is leading an effort to advocate for and establish a specialised pilot court for migrant children within the judicial system of England and Wales. This proposed pilot court would deal in an holistic manner with issues relating to unaccompanied and separated migrant children and it is hoped that it will eventually serve as a model justice system for all young people, regardless of their protection or immigration status, nationally and internationally.

This submission is made in response to the Justice and Home Affairs Committee call for evidence on the impact of family migration policies in the United Kingdom. First Rights seeks to make submissions particularly in relation to migration policies affecting unaccompanied and separated children (hereafter referred to as “child” or “children”) who have been separated from one or both of their parents as a consequence of migration and migration decisions, whether as refugees or otherwise.

This submission will also comment on the ways decision making could be improved through a specialised court which places the best interests of the child at the heart of all decision making and ensures that the views of the child are fully and properly taken into consideration.

In the context of family migration policies, the outcomes of decision-making processes, whether administrative or judicial, are likely to be complex. Migrant children are some of the most vulnerable young people in society and are at a heightened risk of abuse. Migration policies in the UK, including policies leading to the administrative removal or deportation of family members, (including “failed” asylum seekers), and highly restrictive family reunion policies, have a profound impact on children. Children are too often not afforded a level of protection in accordance with the substantial body of international legal principles and treaty law which should be applied without discrimination of any kind in the treatment of migrant children. Despite operational guidance, judicial practice directions, even statutory safeguarding measures, children are let down repeatedly by procedures which fail to identify, much less protect their fundamental rights and which pay insufficient attention to their well-being, their best interests, family unity, and long term development needs. Decision making processes effectively place immigration control always and wrongly above the best interests of the individual child and migrant children as a whole, despite clear and detailed judgments by our most senior courts that this approach is incorrect. Immigration laws, policies, and practice are all too often in direct conflict with the rights guaranteed under the CRC. Where the interests of children are considered these are often perfunctory and isolated. An holistic approach by all actors with responsibilities towards children would be more appropriate and effective in properly identifying and situating the rights and interests of the child.

According to Home Office statistics, over 3,762 unaccompanied children sought asylum in the UK in 2021 (a 36% increase to 2020).[1] First Rights notes its long-standing concern that unaccompanied and separated children are particularly disadvantaged by the absence of a parental figure, or both parental figures with the capacity to make decisions with their best interests as a primary consideration.[2] The UK Government’s family reunification policies further compound this.

A recent report on the impact of family separation on child refugees in the UK[3] detailed the situation of migrant children and the effects of prolonged separation from parents. The report notes that the UK Government’s policy on family reunification “prevents child refugees who have sought safety in the UK from being joined by their parents, brothers, or sisters; leaves the UK as the only EU country that refuses to grant child refugees the right to be reunited with even their closest family; and is directly at odds with national and international law, contravening the principle of the best interests of the child”.[4]

At present, unaccompanied and separated children granted refugee status are not permitted to be joined by their parents.[5] No provision has been made for family reunification in the case of a child who has gained refugee status in the UK as they do not have the right to sponsor their family members (parents or siblings). In AT (Family reunification: Eritrea) [2016] UKUT 227 (IAC), 24 March 2016, the Upper Tribunal noted that this is a blanket prohibition in operation and that “it is striking that there is no evidence bearing directly on the policy aims and justification underpinning this exclusion”.[6]

However, the policy is still in place and children are left unable to reunite with their family members and are subsequently left in the de facto care of local authorities without consideration for how the BIC have been considered and whether this decision is appropriate for the child’s development and well-being.

This policy differs greatly to those of European Union States – the majority of which accord unaccompanied children the right to sponsor family reunification as provided for by the EU Family Reunification Directive.[7] The ‘blanket’ policy of the UK also disregards obligations under international law, such as the CRC which explicitly provides for the right of the child to be with family (Article 9) and family reunification (Article 10). 

First Rights is also concerned that unaccompanied children are disproportionately accommodated under the lower, “looked after” responsibilities of local authorities, rather than in accordance with their statutory care proceedings duties (which are subject to judicial supervision)[8] with over 1600 such children accommodated by London local authorities as of December 2021. There is also concern at the shortfall between the funding of local government children’s services, by way of Home Office reimbursements and the true costs of providing appropriate care for asylum seeking children.[9]

Recently, the President of the Law Society, when giving evidence to the House of Lords on the UK memorandum of understanding with Rwanda,  regarding the exclusion from UK asylum procedures and transportation of asylum seekers to that country, stated that the policy “is not legally binding, has not been scrutinised by parliament and does not protect the rights of asylum seekers”.[10] The ‘asylum partnership’ provides insufficient notice to obtain legal advice regarding removals and short timeframes may result in failures of the Home Office to identify vulnerable individuals, such as unaccompanied children and potential victims of human trafficking. Such failures run counter to obligations under both UK domestic and international children’s, refugee, and human rights laws. For unaccompanied children, this policy poses specific concerns. The policy to quickly and potentially permanently remove to Rwanda persons seeking asylum in the UK is hugely problematic as Home Office and local authority age assessment procedures are likely to continue to wrongly exclude many children from child protection and welfare responsibilities including those liable to be sent to Rwanda if determined to be adults. Currently, there are no safeguards under those arrangements, to protect children who state that they are children but are assessed by the Home Office to be adults.[11] This does not happen infrequently. According to data collected from 55 local authorities in 2021, over 450 persons were referred to children’s services after being sent to adult accommodation: three quarters of those referred were found to be children who had been incorrectly assessed to be adults.[12] 

Children are likely to face issues in the UK regarding their immigration status, their care arrangements, reception, and potential family location and reunion. It is therefore crucial that there are procedures in place to enable decisions to be taken that assess, identify and promote the best interests of the child  both procedurally and substantively; children should be afforded the opportunity to be heard and to participate in proceedings concerning them in a manner that engenders children’s trust and confidence in that system; they should be appointed legal representatives expert in both children’s and migration law and accompanied by suitably qualified guardians. The decision-making and related judicial systems as presently designed are fragmented and oriented towards implementing/reviewing the lawfulness of immigration decisions rather than a children’s rights model based on the immediate and long-term protection, welfare and development needs of children and indeed young adults on their reaching adulthood and leaving care. EJMC proposes a cultural shift in approach and a fundamental revision of present arrangements. 

While the number of unaccompanied asylum-seeking children in the UK is known, there is limited qualitative data on exactly what happens after they claim asylum. Nor is there reliable data on the number of young people in court or tribunal proceedings and their experiences. EJMC proposes the establishment of a specialist pilot court with the objectives of improving decision making in relation to all aspects of the welfare and protection needs of migrant children. A pilot Court which adopts a multidisciplinary approach to best interests assessments  and decision-making and which promotes the participation of children, has the potential to significantly improve the overall quality of initial decision-making in relation to children and to bring UK policy in line with its international legal obligations (CRC) and indeed, domestic immigration policies and statutory safeguarding duties in respect of asylum seeking children. Such a mechanism at a domestic UK level would be capable of making better-informed, timely and more appropriately child-focussed decisions.

Collaborative working, i.e., engaging legal practitioners, guardians, social workers, and children themselves, should be a central part of the pilot court. Identifying the BIC should be done at the earliest opportunity, by all relevant experts, and supervised by a judicial model. To depart from this best interests determination, the Home Office should have good reasons in line with international law and propose an alternative that causes the least damage to the child.

In 2013 The Joint Committee On Human Rights published a comprehensive report on The Human Rights of Unaccompanied Migrant Children and Young People in the UK and made a wide range of recommendations, including the establishment best interests determination and a specialist pilot court.[13] Sadly this was summarily rejected by the Home Office in its own formal response to the report and many more of its recommendations remain unimplemented. These are as urgent as issues of concern for migrant children as they were a decade ago, arguably even more so in light of the UK’s departure from the European Union and its common asylum policies and Charter of Fundamental Rights, (both of which contained a number of particular child-specific cooperation and children’s rights based decision-making frameworks, not carried forward after ‘brexit’) and controversial policies like the UK-Rwanda agreement.

September 2022