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Chapter 14 | Policy and Practice Recommendations Recommendations ■ ■ ■ ■ ■ ■ 12.1 Every unaccompanied or separated child who is refused asylum should be granted an immediate right of appeal against that decision. 12.2 No unaccompanied or separated child should be removed from the U.K. until he or she has been able to exercise that right of appeal and to have that appeal fully determined at all levels of the appellate structure. 12.3 Any unaccompanied or separated child who has arrived in the U.K. and claimed asylum should have his or her application considered and should be granted an in country right of appeal even if he or she is potentially subject to Dublin II. 12.4 The Department of Constitutional Affairs in consultation with the Legal Services Commission and the Law Society should establish a Children’s Panel for legal representatives wishing to represent unaccompanied or separated children, whose members will be paid enhanced rates. 12.5 The Department of Constitutional Affairs in consultation with the Immigration Law Practitioners’ Association and the Refugee Children’s Consortium shall establish an independent Review to consider the availability and effectiveness of legal representation and other forms of independent advocacy for unaccompanied or separated children. 12.6 The Law Society and the Legal Services Commission should include a module on representing unaccompanied children in the curriculum for the Immigration Accreditation Process. ■ ■ ■ ■ 12.7 The Legal Services Commission should permit a tolerance of 15% where solicitors are representing unaccompanied or separated children. 12.8 The revised merits test for Controlled Legal Representation should also apply to former or age disputed unaccompanied or separated children. 12.9 The Department of Constitutional Affairs should arrange appropriate training for all Immigration Judges, Designated Judges, or Senior Immigration Judges who hear appeals from unaccompanied or separated children or from disputed age unaccompanied or separated children. 12.10 The resolution of an age dispute should be treated as a preliminary issue in an asylum appeal and if the evidence indicates that an unaccompanied or separated child has been wrongfully treated as an adult, the Secretary of State for the Home Department should be asked to re-determine his or her initial application according to the appropriate guidelines. Chapter 13 Appeals: Processes and Outcomes Child friendly environment Child friendly environments during the adjudication process have been officially encouraged since 2004. 51 Suggestions to create a less intimidating atmosphere include adjudicators sitting around a table with the child or moving the hearing to their chambers, and the requirement to consider the appropriateness of cross examination of the child. Despite such guidance there is little evidence that adjudicators or immigration judges did alter the way they conducted children’s appeals. Children as young as 13 were permitted to give evidence Hosted by www.ijjo.org 201
and adjudicators rarely prevented the child from being cross examined by Home Office Presenting Officers. Child centred decision making Of great concern is the finding that even where the atmosphere of the hearing may have been more child friendly, the majority of adjudicators did not adopt a child centred framework when arriving at decisions. Scarce consideration was given to a child’s difficulty in remembering detailed circumstances relating to their departure or travel. Adjudicators often failed to apply the benefit of the doubt — in breach of the Chief Adjudicator’s Guidance 52 and the Immigration Rules. 53 There is concern that adjudicators have failed to take children’s appeals as seriously as adults because they have already been granted discretionary leave to remain until they reach 18. Specific training of adjudicators on issues relating to unaccompanied and separated children’s appeals was only introduced in 2005. However it was only one case study within a more general training course. unaccompanied or separated children were maintained. Though a theoretical right of appeal exists to the Court of Appeal and House of Lords there have been no reported decisions of substantive asylum appeals by unaccompanied or separated children. Following the reform to the IAT, the Immigration Judges will have a pivotal role in decision making. Recommendations ■ ■ 13.1 The Home Office in conjunction with UNHCR, the Refugee Children’s Consortium and the Immigration Law Practitioners’ Association should devise a course to prepare Home Office Presenting Officers for representing the Secretary of State for the Home Department at appeals by unaccompanied or separated children. 13.2 The Home Office should ensure that no Home Office Presenting Officer is allocated an appeal by an unaccompanied or separated child until he or she has attended any such course. Role of home office presenting officers ■ 13.3 The Home Office should prepare written Where an unaccompanied or separated child is not guidance for Home Office Presenting Officers on SEEKING ASYLUM ALONE | UNITED KINGDOM 202 legally represented at the appeal the Home Office Presenting Officers (HOPOs) play a crucial role. There has been considerable resistance from HOPOs to differentiate between adults and unaccompanied or separated children, with cross examination of the children regularly requested and allowed. HOPOs have expected children as young as nine to give evidence. 54 Immigration Appeal Tribunal Prior to the reform of the Immigration Appeal Tribunal (IAT) into a single tier, an appeal could be made to a three person tribunal which could provide legal guidance to adjudicators. This system operated for 12 years but no records relating to the appeals of ■ how to represent the Secretary of State for the Home Department at appeals by unaccompanied or separated children in compliance with best practice as established by UNHCR, the Separated Children in Europe programme, and the Immigration Law Practitioners’ Association. 13.4 The Department of Constitutional Affairs and the Home Office should collect statistics about the number of unaccompanied or separated children appealing against an initial refusal to grant them asylum, the grounds upon which such appeals were brought, and the outcome of these reports and the basis upon which they were allowed or dismissed. Hosted by www.ijjo.org
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Unaccompanied and Separated Childre
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ABOUT THE AUTHORS Jacqueline Bhabha
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Manchester City Council; Sue Fisher
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Contents Chapter 1 | 9 Chapter 5 |
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SEEKING ASYLUM ALONE | UNITED KINGD
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Arriving in the U.K. 6 The Immigrat
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ers often believe that although a p
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fear of certain groups in society t
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that unaccompanied minor children f
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It then added that “although chil
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2004 it rose to 8.8%. This was at a
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2.3 Countries of Origin Unaccompani
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Recommendations ■ 1. If the U.K.
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There was no comparable age differe
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2.7 Private Fostering Arrangements
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Endnotes 9 Statistics published by
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unfounded, thus depriving this subs
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Bill in Parliament which would have
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of someone who might be an unaccomp
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It is clear that the Rules are a po
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subsequently abducted by their form
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“G” was a 16-year-old Christian
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■ 4. Article 4 of the European Co
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17 A multi-agency task force establ
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of the asylum determination process
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as a group around the claimant laug
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with as being hostile. Nor did they
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purposes. 38 The Immigration and Na
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or local authority social services
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als from age disputed children deta
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and February 2005 when 75% of those
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accommodation which is separated fr
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e safe to let the child go and live
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case, that adult is advised to info
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The official justification for thes
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Asylum Support Team has a case load
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days and a second review after thre
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provides access to rehabilitation a
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who the child must try to relate to
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adult in their life to speak on the
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8.3 Role of a Legal Guardian rights
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asylum application and monitor the
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do once I got to London. The pictur
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Some social services departments do
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■ 5. The screening interview shou
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eturn to a country requiring servic
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■ 6. The syllabus for the Accredi
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this research believe that it is no
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A recent White Paper 13 states that
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an important and distinct role to p
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for Determining Refugee Status. 30
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draws on a small number of other re
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■ 3. UNHCR also states that the q
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contact the child via social servic
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It is not possible to ascertain the
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leave to remain if it was unlikely
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“Unaccompanied children are not g
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5 IND. Unaccompanied Asylum Seeking
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until they turn 18, whichever is th
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Page 153 and 154: could have been allowed. In one of
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Page 161 and 162: 42 Interview with Laura Brownlees,
Page 163 and 164: SEEKING ASYLUM ALONE | UNITED KINGD
Page 165 and 166: should resolve this difficulty. The
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Page 173 and 174: Basis Upon Which Appeals Were Allow
Page 175 and 176: Recommendations 14 Immigration Rule
Page 179 and 180: concern the plethora of evidence of
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Page 189 and 190: which would have provided for a leg
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Page 193 and 194: ■ 9.9 The interviewer should alwa
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Page 201: appeal. The Asylum Policy Unit has
Page 205 and 206: 22 Information provided by Ailish K
Page 207 and 208: A P P E N D I X 1 Glossary of Terms
Page 209 and 210: Bibliography Amnesty International.
Page 211 and 212: Immigration Advisory Service. Submi
Page 213 and 214: FOR MORE INFORMATION PHOTOGRAPHY CR
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