SCOPE OF THIS CHAPTER
This policy and procedure provides guidance to all staff working in Children's Services with unaccompanied asylum seeking children (UASC) in Coventry. This document should be read alongside statutory guidance: Care of unaccompanied migrant children and child victims of modern slavery (GOV.UK).
See also Appendix One - UASC Checklist.
In February 2020, this has been updated throughout and should be re-read.
- Who is an Unaccompanied Asylum Seeking Child?
- Main Legislative Framework and Guidance
- Who is Responsible?
- Procedure for UASC Arrivals in Coventry
- Age Assessment Procedure on Arrival
- Social Work Assessment
- Missing UASC
- Age Assessments
- Third Country Applicants
- Care and Pathway Planning and Review
- Education and Training
- Health Needs
- Financial Support
- Transition at 18 Years and Immigration Status
- Withdrawal of Leaving Care Services
- Eligibility for Support from DWP or Asylum Support via UK Visa and Immigration (formerly National Asylum Support Service)
- Detention and Removal
- Appendix 1: UASC Checklist
1. Who is an Unaccompanied Asylum Seeking Child?
The United Nations High Commissioner for Children defines unaccompanied children as:
"Those who are separated from both parents and are not being cared for by an adult who, by law or custom, has the responsibility to do so" (UNCHR (1994) Refugee Children: Guidelines of protection and care).
The Home Office defines a UASC as a person who, at the time of making the asylum application:
- Is, or (if there is no documentary evidence) appears to be, under eighteen;
- Is applying for asylum in his or her own right;
- Has no adult relative or guardian to turn to in this country; and is fleeing persecution from their own country.
2. Main Legislative Framework and Guidance
The Children Act 1989 places a responsibility upon local authorities to safeguard and promote the welfare of children and young people living in their area. When children in need are identified, including newly arriving UASC, an assessment of their needs should be undertaken.
The Association of Directors of Children's Services (ADCS) have issued guidance to support local authorities in achieving compliance with relevant case law, and child care and immigration legislation. In summary, the guidance states:
- All UASC should, on arrival, be supported under Section 20 of the Children Act 1989, until assessment of needs has been completed. In some instances, it may be necessary to seek legal advice to consider whether the threshold is met to initiate care proceedings;
- Based on assessed need, most UASC including 16 and 17 year olds who require accommodation should be provided with Section 20 support;
- The majority of UASC will be entitled to leaving care services.
Section 17 can be used to support UASC in exceptional circumstances where an assessment of needs identified that to become looked after would not be in the child's best interests - for example if the young person strongly expresses aversion to becoming looked after.
Exceptions to the provision of support under Section 20 could arise where older asylum seeking young people may refuse to be 'looked after' but because of their immigration status, the Children Act 1989 provides their only lawful means of support in this country. The local authority after taking account of the child's wishes under Section 20 might judge that the young person is competent to look after him or herself. In these instances Section 17 may be used for support, including accommodation without making the young person 'looked after'. It is vital, however, that the young person has been assessed as understanding the full implications of being supported under Section 17 rather than Section 20 and is Gillick Competent to make that decision.
Young people who arrive within 13 weeks of their 18th birthday will not qualify for full leaving care services even if they have been provided with Section 20 or 23 support under the Children Act 1989 for the weeks leading up to their 18th birthday, as they have not been 'looked after' for 13 weeks or more. They are known as 'qualifying children' and although they are not entitled to the main leaving care entitlements, they are entitled to advice, assistance and befriending (see Leaving Care and Transition Procedure).
Please also refer to Care of unaccompanied migrant children and child victims of modern slavery (GOV.UK).
3. Who is Responsible?
Children and young people seeking asylum may arrive in Coventry in several ways and this will dictate where they are in the immigration process. They may be new in-country applicants who have found their way to Coventry and are not known to the Home Office. The local authority where an unaccompanied minor first arrives is responsible for them under the Children Act 1989.
Coventry Children's Services, in partnership with other statutory agencies, voluntary and private organisations will strive to meet the needs of UASC within UK legislation and national policy frameworks.
Regardless of immigration status, the child or young person's needs should be considered as paramount, and a UASC will be entitled to an assessment as a child in need of care and protection under the Children Act 1989. If the child or young person is to be looked after they will be provided for under Section 20 of the Children Act 1989. Where links and/or re-unification with family or friends are possible, responsibility can only be discharged following a full assessment, to inform a decision for the child to cease to be a looked after child. This decision will also require sign off from the Director of Childrens Services.
4. Procedure for UASC Arrivals in Coventry
Before a child is referred from the MASH to Through Care it should be established that there is no connection with another area. If it becomes evident that a child has presented to any other authority prior to arriving in Coventry, or if they are staying in an area of another local authority, that relevant authority must be contacted and arrangements made for the child to be returned to that area.
In all cases where a referral is received concerning an unaccompanied asylum seeking child in Coventry, the relevant social work teams (MASH and Through Care) will respond immediately, and meet the child/young person to start to complete a social work assessment to determine whether they are a child in need.
The agreed new arrival checklist should be followed: Appendix 1: UASC Checklist.
In completing the social work assessment the practitioner must collect as much information as possible about the young person from the referrer. The young person's name must be recorded in the correct order and spelled correctly. The practitioner must ask about ethnicity, first language, medical needs including if the young person is pregnant, if female.
Consideration should always be given to the child being seen alone and with an interpreter if needed. Unless they are fluent in English it is not possible to conduct an assessment without an interpreter. Coventry Children's Services has access to interpreting and translation services to meet this requirement. Consideration should also be given to providing children with translations of written information and assessment reports.
The practitioner should ask for young person's date of birth - ascertain any issue about accuracy or immediate concerns regarding age. There should also be consideration of any immediate safeguarding needs - are there any trafficking indicators which require further assessment before further action is taken? Consider any health needs which require immediate medical attention. Ensure biometrics of the child or young person are taken at point of arrival and also a photograph of the child/young person.
The threshold of need and priority for services are the same for UASC as any other child. The same thresholds for child protection responsibilities also apply. There is no difference in entitlement to allowances or financial support because of immigration status for children in need, children looked after and care leavers. Where a child is accompanied, consideration needs to be given as to the relationship with that adult and whether private fostering duties and responsibilities apply (See Private Fostering Procedure).
5. Age Assessment Procedure on Arrival
Other than in clear cases, age cannot be determined on appearance alone, and an assessment must be carried out based on personal history as well as ethnic and cultural information. The local authority must not simply adopt the decision of the BIA (Border and Immigration Agency), and the decision maker must give adequate reasons for a decision that an applicant claiming to be a child is not a child.
Where there are immediate concerns that the UASC may be an adult at the point of arrival, an immediate assessment can be made based on physical appearance in line with the Croydon Judgement (2009). The Croydon judgment (2009) stated that, ' if the applicant's physical appearance / demeanour very strongly suggest that they are SIGNIFICANTLY over 18 years of age the applicant should be treated as an adult and be considered under the process instructions for adults. These cases DO NOT fall within the age dispute process.'
In such cases, a second opinion from either a manager or senior social worker will be required in reaching such a decision. Where it is determined that they are an adult, Coventry Children's Services will provide a letter stating that they are refusing to accommodate them as a child. The Home Office will issue an IS97M and transfer them to Asylum Support to receive accommodation and financial assistance as an adult. In all other cases, the young person should be afforded the benefits of the doubt until a full age assessment has been completed.
6. Social Work Assessment
The Children and Families or (C&F) Assessment is the main tool to inform care planning, and should be undertaken by a social worker who is trained to recognise and understand the particular issues faced by these children. It must be managed sensitively to reduce fear, anxiety or confusion.
The assessment will need to include the reason why they started their journey and their experiences on the way. It may be social care staff are amongst the first people they meet on arrival. For many their experiences prior and up to leaving their homes will have been traumatic, complicated and experienced the loss of significant family members and community, and for many their experience of the journey will also have been traumatic. Therefore, they are likely to be the victim of what has been described as- "Triple Jeopardy", which includes the trauma experienced in their country of origin, their experiences on route and the treatment they are subjected to on arrival i.e. treated as second class citizens, racism and xenophobia (Melzak, Research in Practice 2005, On New Ground: Supporting unaccompanied asylum seeking children and young people). Ethnic origin and life experiences before arrival in this country will influence personal development and may impact on visual or emotional presentation.
Enabling the UASC to be part of the assessment process is extremely important as in most cases they will be the major source of information. Consideration must therefore be given to securing an interpreter with the level of skill and experience necessary to support the individual to understand why an assessment is necessary, and what will happen. Consent to gather or share information with another agency must be obtained.
Whilst Children and Family Assessment timescales are up to 45 working days. When completing the assessment, the following should be considered:
- The majority of UASC will feel isolated without family or friends in this country;
- The potential for making contact with birth family in country of origin;
- Educational attainment will vary greatly, depending on their country of origin, previous formal education and fluency in speaking and comprehension of English;
- Health problems may not have been diagnosed due to limited health services in their country or origin and there may be immediate health needs to be addressed.
Consideration must be given to whether the UASC may have been exposed to infectious diseases either in their country of origin or on route to the UK. Where there are concerns about this, advice should be sought from the designated health team.
The designated health team will fast track initial health assessments of newly arriving UASC so notifications and IHA form must be forwarded to them within 48 hours of referral. The emotional and mental health needs of UASC need to be taken into account and consider the below:
- Experience of prejudice against asylum seekers;
- Feelings of uncertainty and anxiety whilst their claim for asylum is considered;
- The young person may have suffered torture and be traumatised by this abuse;
- Background information about the young person's country of origin, for example by reading the Country of Origin guidance.
The Children and Family Assessment will take account of:
- The age assessment of the young person;
- Vulnerability of the child/young person due to separation from family, friends and country of origin;
- Any factors regarding safety, such as concerns around trafficking;
- Ethnicity, religion, gender and how these impact on immediate needs;
- Available information regarding how the young person arrived in the UK, how long they may have been here, possible family or friends that they may be intending to meet. It is particularly important to gain a detailed account of their journey as this may provide information that will assist with an assessment around immediate risk (trafficking, third country issues, continuing exploitation and control);
- Reasons why they have come to the UK;
- The young person's physical and mental health, and any factors which may increase their vulnerability;
- The young person's accommodation and financial needs;
- Any documentation to support information;
- Consideration as to whether it would be in the best interests of the young person to be considered for a transfer to another Local Authority via the National Transfer Scheme.
At the conclusion of each assessment, there should be a decision and rationale about whether we should or should not seek a Care Order. The expectation would be that for young children and/or those with additional needs, serious consideration must be given to seeking a Care Order.
In accordance with the requirements of the Council of Europe Convention on action against Trafficking in Human Beings, the UK has a National Referral Mechanism (NRM) for identifying and recording victims of trafficking. Professionals who come into contact with a child they suspect to be a victim of trafficking need to act to support and protect this child from further harm. Consideration should be given to undertaking a strategy discussion and Section 47 enquiries depending on perceived risk in this case and a safety plan should be created and shared with all involved in supporting the young person.
Where there are concerns in respect of trafficking, a referral is to be made to the Barnardo's Independent Trafficking Guardianship Service for guidance and advice around safety planning and direct work for the child or young person.
A careful evaluation of the young person's needs and wishes will need to be undertaken in order to identify a suitable placement. A full and considered assessment may not be possible at the initial meeting with the young person, yet it is likely that a placement will need to be identified.
It may be necessary, therefore, to place the young person temporarily pending further assessment and identification of a suitable placement. The young person and carers should be made aware of this, and further assessment undertaken at the earliest opportunity to inform care planning. Foster carers / supported accommodation staff will need to be carefully and accurately briefed about the young person's cultural, religious and ethnic needs, and about the situation/experience in the home country and during the journey to the UK. Any particular dietary needs will need to be identified and discussed with carers. All these issues will be included in the Placement Plan.
Issues to be considered in relation to placement selection will include:
- Immediate risk factors, includes risks around the age of the young person, and concerns around trafficking;
- Religious, linguistic and cultural needs. Where necessary, the carer should be provided with the details of interpreting companies commissioned by the local authority;
- Use of supported accommodation for those who arrive aged 16 and 17 subject to an assessment of need. If there are safeguarding concerns around trafficking, a foster placement must always be sought pending the outcome of further assessment.
The allocated social worker will complete further assessments, develop a care plan and put the care plan into action. If the young person is over 16, they will also be allocated a Personal Adviser (PA). Where there is a dispute/uncertainty about the young person's age, a risk assessment should be undertaken to minimise the potential dangers to vulnerable others already in placement, and the welfare and emotional wellbeing of the young person to be placed, whilst an age assessment is completed.
The young person should, at the point of placement, be given the name and contact number of a social worker who s/he can contact and, where the placement is made by a duty social worker, a social worker should be allocated without undue delay. If a young person is suspected to have been trafficked, they also need to be given information as to how they can access help if they go missing.
The expectations and rules of the placement should be carefully explained to the young person, together with any financial arrangements that will apply via the completion of the Placement Plan. It should be borne in mind that the young person's primary needs are likely to be for food and shelter, a bath, clean clothes and caring adults.
The physical appearance of the placement, its location and who lives there should be explained to the young person before s/he is taken to the placement. An orientation with the local area will need to be organised as soon as possible to include relevant points of contact with the young person's community, support agencies and religion.
9. Missing UASC
UASC are vulnerable to 'people traffickers'. All relevant staff and carers should be made aware that they may be targeted, recruited or coerced into exploitative situations.
When any UASC goes missing, Children Missing from Home, Care and Education Procedures must be followed.
The police must be contacted and all available information given that may lead to the child or young person being recovered. The Home Office must be informed as they may hold a current photograph and finger print record. Details of the missing UASC will be posted on the UASC Index. This will ultimately be part of the National Child Index for England and Wales.
UASC have the same rights as other looked after children who are missing children and they will remain open to Childrens Services until the age of 18. When a missing UASC is located, this must be carefully explored as the UASC may be paying back a debt of honour, and it may put them or their family of origin at risk if they do not continue to co-operate. They should be viewed as at risk, and continuing efforts should be made to protect them. This will require a strategy meeting with the police and agreement about how to proceed. If a child/young person is suspected to have been trafficked, they also need to be given information as to how they can access help if they go missing.
A referral is to be made to the Barnardo's Independent Trafficking Guardianship Team for any UASC that are missing or have been located for their support and advice.
10. Age Assessments
The latest guidance must be followed. ADCS guidance 2015:
''Assessing workers should assess from a holistic perspective, and in light of the information available. It is a process of professional judgement and a particularly sensitive issue involving many variables; not least the worker's ability to understand the cross-cultural issues that might apply''.
Decisions on age assessments are sometimes required quickly. Where there is uncertainty, the benefit of doubt should always be given to the young person. In completing the assessment, it is important to recognise that the UASC has the right to legally challenge the conclusion. If a child/young person is assessed as being over 18 they should be given a copy of the assessment and advised to seek independent legal advice.
Please see separate guidance on Age Assessments.
11. Third Country Applicants
Some UASC will have been fingerprinted in another country on route to the UK and this may be considered as an asylum claim. In such cases, the UASC will be referred to the Third Country Unit at UKVI to consider whether it is in the best interests of the UASC to be returned to the third country to have their asylum claim heard.
12. Care and Pathway Planning and Review
The immigration and trafficking status of the young person must be taken into account in care planning and pathway planning in line with statutory guidance – Care of unaccompanied and trafficking children: Statutory guidance for local authorities on the care of unaccompanied asylum seeking and trafficked children (Department of Education, 2017).
Planning needs to take into account the three possible outcomes for UASC turning 18. This is known as triple planning and should be part of the statutory planning through the care plan, pathway plan and review process.
Planning for the three possible outcomes at 18 includes:
- Equipping the young person to have a future in the UK if they receive some form of leave to remain in the UK past their 18th birthday;
- Preparing the young person to be returned to their country of origin if they are refused an extension to remain in the UK and are returned to their country of origin; or if they decide to return of their own accord;
- Supporting young people who are refused leave to remain in the UK and who have exhausted all appeals but have not yet been removed. These young people are referred to as “end of line" or Appeal Rights Exhausted cases.
13. Education and Training
As far as admission to school or college is concerned, UASC have the same rights as any other looked after child in Coventry.
14. Health Needs
The designated health team will fast track initial health assessments of newly arriving UASC.
Consent: The department does not hold parental responsibility for any UASC accommodated under Section 20 and does not therefore hold authority to authorise prophylactic treatment or other invasive medical procedures. However, where a child is over 16 years old and Fraser competent, the law states that they are competent to consent to medical treatment. The individual themselves may consent to medical treatment and the decision to proceed with treatment will be made by health professionals in consultation with the child or young person. If treatment is required and no consent from the child or young person can be obtained either because consent is withheld, the child is not deemed to be competent to give consent or cannot be obtained because of medical emergency, the decision to treat or otherwise will be made by health professionals who will consider the competency and how necessary the treatment is in accordance with the law and health policy.
The local authority that looks after a child must take all reasonable steps to ensure that the child receives the health care services he or she requires as set out in their health plan. Those services include mental health services, medical and dental care treatment and immunisations, as well as advice and guidance on personal health care and health promotion issues.
Where the child/young person is capable of consenting themselves, in relation to medical treatment, then consent should always be sought. Children under 16 can consent if they understand what is being proposed and a medical professional determines the child has capacity to give consent. If there is doubt as to the ability of a 16 or 17 year old to give consent, consideration should be given to undertaking a Mental Capacity Act assessment.
In the event of an emergency, the medical professional will seek consent but can make a judgement as to what emergency treatment is necessary. If in doubt, legal advice should be sought.
15. Financial Support
UASC have the same access to financial support from the local authority as any other looked after child or care leaver. Any young people aged 16 or 17 who are not looked after but receive a positive decision on their asylum claim will be eligible for state benefits, including Universal Credit and Housing Benefit.
In some cases, legal aid will be available for asylum cases and trafficking cases where the individual has been recognised as a trafficking victim and legal proceedings relating to immigration detention.
Legal aid is available for judicial review, subject to some specific exclusions, in recognition that any immigration legal advice that a child receives needs to be independent of the local authority and from a qualified immigration advisor. The local authority will consider whether paying or contributing to legal fees where this will be the best way to meet the child's identified needs. An assessment of the merits of an immigration case will be based on an informed legal opinion, which will require the independent opinion of two independent immigration solicitors. Any funding from the local authority can only be agreed by an Operational Lead. Early identification of cases and early discussion with an Operational Lead on such cases is required.
16. Transition at 18 Years and Immigration Status
Young people granted UASC Leave to Remain on arrival must apply for further leave to remain before their current leave expires. Young people should be reminded of this by their solicitor and social worker, and assisted in attending any appointments by their worker who may wish to liaise with their UKVI case worker. The Home Office intention is for decisions about this application to be made by the time of the young person's 18th birthday.
Where applications are granted, young people may be given Indefinite Leave to Remain (ILR) or other types of leave to remain in the UK.
If granted Refugee Status/Further Leave to Remain the young person will be entitled to access the welfare benefits system. In cases where access is denied or delayed, comparable support will be provided by the local authority under the general welfare duty for care leavers.
Where applications are refused, young people will be informed that they are liable to be detained and removed and that they are required to report to the Home Office. Young people may have the choice of voluntary repatriation at age 18 or over, or may become subject to physical detention awaiting removal. Solicitors may advise further action such as a legal challenge to a decision or an application for Humanitarian Protection (HP).
Having refused an application, the UKVI may be unable to remove some young people to certain countries or some parts of certain countries due to conditions in the prevailing conditions in that country or region or due to entry requirements by a particular country. For young people whose applications have been refused, this is likely to be a very difficult, anxious and confusing time.
Whether applications are granted or refused, young people who have gained care leaver status through being looked after remain entitled to the support applicable to that status and most will become former relevant care leavers on attaining the age of 18, continuing to be entitled to support from a PA, the maintenance of a pathway plan based on their needs and access to Staying Put. However, those whose Appeal Rights are Exhausted, ongoing support from the local authority will be subject to them complying with immigration requirements (attending appointments, reporting and possible Human Rights Assessment's etc).
Where applications are granted, young people should be entitled to work, train, receive benefits and access accommodation in the same way as other former relevant care leavers. Where applications have been refused or not yet decided, young people at 18 can apply to UKVI asylum support to meet their basic needs (accommodation and maintenance) and, if granted, UKVI should continue to pay the local authority to continue supporting the applicant rather than disperse the young person to other areas of the country. Where support to meet basic needs is refused, the local authority may need to use discretionary powers under the Leaving Care Act to provide accommodation and maintenance. In either case, young people will continue to be entitled to other provision relevant to their care leaver status as agreed in their pathway plan and its review.
Unlawfully in the UK
17. Withdrawal of Leaving Care Services
Those who have failed in their asylum application and who become Appeal Rights Exhausted may be subject to a Human Rights Assessment to determine if they will continue to receive support as care leavers by the local authority up until the age of 21. This will also be based upon their compliance with Home Office requirements (e.g. attending appointments). Being a failed asylum seeker is not sufficient cause on its own to withdraw or withhold local authority support. They must have in addition, failed to comply with the removal directions issued in respect of them (Schedule 3 of the Nationality, Immigration and Asylum Act 2002).
18. Eligibility for Support from Department for Work and Pensions or Asylum Support via UK Visa and Immigration (formerly National Asylum Support Service)
All those eligible for support from Asylum Support or Department for Work and Pensions (DWP) should be supported to make applications. Local authority care leaver funding will not be provided to those who are eligible but have not made a claim.
Young people who have refugee status, humanitarian protection or UASC leave (including those who are applying for an extension in-time or are appealing a refusal of extension) will be entitled to apply for mainstream benefits.
Others will be entitled to asylum support (subsistence and accommodation) at 18 years old. These include:
- Young people who do not have a decision on their initial asylum application on their 18th birthday;
- Young people who have an outstanding appeal against an outright refusal of asylum (but only if they have not been granted any other form of leave, such as a period of discretionary leave);
- Young people who have applied for an extension of leave to remain ' out of time', i.e. after their leave has expired, and their asylum claim is being treated as a 'fresh application' by the Home Office.
In addition those who are not eligible for leaving care support because they arrived within 13 weeks of turning 18, will be transferred from Children's Services support to Asylum Support on their 18th birthday, as long as they fit the Asylum Support criteria. If they are receiving some support from Childrens Services as 'qualifying children' then it may be possible to argue for the young person not to be dispersed and to remain in the area where they are receiving this support.
Those turning 21 years old
Prior to their 21st birthday, and through pathway planning, the young person will be advised regarding alternative avenues of advice and support from the voluntary sector, such as the Refugee Council, and support via Asylum Support.
19. Detention and Removal
Young people who have become 'Appeal Rights Exhausted' and exhausted all lines of appeal are either expected to make arrangements to leave the country voluntarily, or if not, are likely to have their removal enforced by the Home Office. In line with immigration legislation, young people in this category are expected to comply with all reporting conditions.
Prior to their 16th birthday and beyond, all unaccompanied young people should have a pathway plan to prepare them for the transition period to adulthood. Support for unaccompanied young people turning 18 is especially important where their immigration status means that their future in the UK remains uncertain. In such circumstances, they will need to be prepared by triple planning for the three possible outcomes of their asylum applications by their plans, and should be part of their regular statutory planning through the care plan, pathway plan and review process. As part of triple planning, workers should ensure that those unlikely to have leave to remain after their 18th birthday prepare a young person to be returned to their country of origin, either if they are refused an extension to remain in the UK and are likely to be returned, or if they decide to return of their own accord.
As part of ongoing pathway planning, discussion about voluntary return for those whom it may be relevant should be explored, and the plan developed accordingly with realistic and achievable goals.
For young people who have turned 18 and have been refused asylum or any other form of status, and who have exhausted the appeals process (including those who have been refused an extension to their discretionary leave), reporting conditions will be put in place by the Home Office. The IS96 is the written notification that will inform the young person about their reporting conditions and will detail where to report and how often. The IS96 also notifies the individual that they remain liable to being detained, and individuals should be aware that there is a likelihood that they will be detained prior to their removal (see Immigration reporting centres, GOV.UK).