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Chapter 8 | The Need for a Legal Guardian Referral and Allocation of Advisers to Unaccompanied or Separated Child Asylum Seekers Number of referrals Number of allocations YEAR 1999 4,406 1,230 2000 4,118 1,671 2001 5,005 1,229 2002 6,513 1,128 2003 4,658 977 2004 3,867 1,082 “I had a couple of referrals from the Panel but most of my kids don’t get advisers. I think they are overwhelmed.” 33 “The panel will now only give kids an adviser if he or she is particularly vulnerable. I know that they don’t have the resources to do that much. When I started at the Refugee Legal Centre eight years ago, I could expect Panel Advisers to come to interviews as appropriate adults.” 34 Of the nine unaccompanied or separated children interviewed in depth for this research, six were referred to an adviser and three were not. However, this may not be a representative sample, as the children interviewed were those who were already in contact with a non-governmental organization such as the Refugee Council. Those who were assisted were very appreciative of the support that they had been given. “The Refugee Council Adviser helped me to find accommodation and referred me to social services and a solicitor. They also talked me through my confusions and frustrations. I think not just with me, but with many children, they must have prevented a lot of suicides. The way they comfort you and give you a reason to believe is really nice.” 35 The Refugee Council itself would welcome additional resources and a statutory basis for its Panel. “Adopting a guardian ad litem model with a legal guardian who could take a step away and oversee social services [would be ideal]...we don’t have statutory authority, so if social services refuse to work with us, our hands are tied. The attitude of local authorities varies — those who are doing well, work well with us. Those that are doing a bad job don’t want to hear from us. Some regularly refer to us. Others refuse to give us details of the child.” 36 The Refugee Council also acknowledges that it: has no legal responsibility for the child, no rights with regard to their care and little say in the asylum process [ and that] currently there is no independent person to represent the best interests of the child as part of the asylum process. The Government [should] provide a legal guardian to every unaccompanied child entering the U.K., to represent their best interests in all proceedings for the time the child remains in the U.K. 37 93 Hosted by www.ijjo.org
8.3 Role of a Legal Guardian rights or even his or her own instructions. Providing this advice to protect the child’s best interests is Many legal representatives and non-governmental organizations working with unaccompanied or separated children believe that a guardian can play a very important role in ensuring that an unaccompanied or separated child’s rights under Article 22 38 of the UN Convention on the Rights of the Child (CRC) are met. Meeting these needs would not necessarily the role played by a Children’s Guardian in the Family Court. The need for such a guardian is particularly apparent in cases where an unaccompanied or separated child has been trafficked but cannot come to terms with the possibility that a parent sold them to a trafficker, or where a child is not mature enough to grasp the parents’ reasons for sending him or her to the U.K. 40 contradict the U.K.’s reservation to the CRC, as many of the necessary measures would have no Compliance With International Standards effect on the Government’s right to maintain effective immigration controls. ■ 1. UNHCR believes that an independent and formally accredited organization, charged with There has been a great deal of discussion amongst legal representatives and non-governmental organizations about both the need for unaccompanied or separated children to be provided with a legal guardian and also about the form such guardianship might take. appointing a guardian or adviser as soon as an unaccompanied child is identified, should be established in each country. The guardian or adviser should have the necessary expertise in the field of child care, so as to ensure that the needs and interests of the child are appropriately safeguarded and protected during the refugee SEEKING ASYLUM ALONE | UNITED KINGDOM 94 There is a growing awareness that a guardian could play a very important coordinating and monitoring role ensuring that other professionals provide the child with the assistance he or she needs from legal representatives, social services departments, landlords, educational establishments, or the Asylum and Immigration Tribunal and higher courts. The need for a legal guardian at the appeal stage has been discussed by many legal representatives. In contrast with the criminal and family jurisdictions in the U.K., no statutory measures 39 are in place within the asylum system to take into account the particular vulnerabilities of an unaccompanied or separated child in a court setting. Once in court, a child’s legal representative is limited to argument about the child’s right to protection. He or she cannot advise the court on the child’s best interests, which may or may not accord with the child’s legal status determination procedures and until a durable solution for the child has been identified and implemented. To this end, the guardian or adviser would act as a link between the child and existing specialist agencies and individuals who would provide the continuum of care required by the child. 41 ■ 2. UNHCR has also stated in its Handbook on Procedures and Criteria for Determining Refugee Status that “a child — and for that matter an adolescent — not being legally independent should, if appropriate, have a guardian appointed whose task it would be to promote a decision that will be in [his or her] best interests.” ■ 3. Paragraph 33 of the UN Committee on the Rights of the Child’s General Comment No. 6 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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Page 43 and 44: of someone who might be an unaccomp
Page 45 and 46: It is clear that the Rules are a po
Page 47 and 48: subsequently abducted by their form
Page 49 and 50: “G” was a 16-year-old Christian
Page 51 and 52: ■ 4. Article 4 of the European Co
Page 53 and 54: 17 A multi-agency task force establ
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Page 57 and 58: of the asylum determination process
Page 59 and 60: as a group around the claimant laug
Page 61 and 62: with as being hostile. Nor did they
Page 63 and 64: purposes. 38 The Immigration and Na
Page 65 and 66: or local authority social services
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Page 71 and 72: and February 2005 when 75% of those
Page 73 and 74: accommodation which is separated fr
Page 75 and 76: e safe to let the child go and live
Page 79 and 80: case, that adult is advised to info
Page 81 and 82: The official justification for thes
Page 83 and 84: Asylum Support Team has a case load
Page 85 and 86: days and a second review after thre
Page 87 and 88: provides access to rehabilitation a
Page 91 and 92: who the child must try to relate to
Page 93: adult in their life to speak on the
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Page 101 and 102: do once I got to London. The pictur
Page 103 and 104: Some social services departments do
Page 105 and 106: ■ 5. The screening interview shou
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Page 109 and 110: ■ 6. The syllabus for the Accredi
Page 113 and 114: this research believe that it is no
Page 115 and 116: A recent White Paper 13 states that
Page 117 and 118: an important and distinct role to p
Page 119 and 120: for Determining Refugee Status. 30
Page 121 and 122: draws on a small number of other re
Page 123 and 124: ■ 3. UNHCR also states that the q
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Page 135 and 136: leave to remain if it was unlikely
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Page 141 and 142: 5 IND. Unaccompanied Asylum Seeking
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until they turn 18, whichever is th
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“There are some exceptionally goo
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could have been allowed. In one of
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esisting removal to their countries
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■ 3. The Law Society and the Lega
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determinations we analyzed this did
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42 Interview with Laura Brownlees,
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should resolve this difficulty. The
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A number of legal representatives b
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Department at appeals by unaccompan
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Basis Upon Which Appeals Were Allow
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Basis Upon Which Appeals Were Allow
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Recommendations 14 Immigration Rule
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concern the plethora of evidence of
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As a consequence of these restricti
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■ ■ accommodate unaccompanied o
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that the vast majority of referrals
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ecause of long waiting lists and be
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which would have provided for a leg
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screening interview and do not real
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■ 9.9 The interviewer should alwa
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excessive delay in reaching a decis
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children, or anyone who had been re
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appeal. The Asylum Policy Unit has
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and adjudicators rarely prevented t
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22 Information provided by Ailish K
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A P P E N D I X 1 Glossary of Terms
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Bibliography Amnesty International.
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Immigration Advisory Service. Submi
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FOR MORE INFORMATION PHOTOGRAPHY CR
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