Unaccompanied children

The experiences of unaccompanied children or young people can be very different to those of adults. Many will have had little if any control over the circumstances that brought them to the UK. Children and young people are particularly vulnerable due to their age, level of maturity and individual needs. Unaccompanied children seeking asylum should therefore be treated as children first and asylum seekers second.

In most respects, consideration of an asylum claim is the same for children as for adults. However, the asylum process differs slightly to take account of children and young people’s particular vulnerability. This chapter outlines the main differences in the asylum process for unaccompanied children and some of the issues likely to confront them. Unaccompanied children also have different support arrangements to adults.

See Unaccompanied Children under the Asylum Support section for information on support for unaccompanied children.

Screening

Applicants considered to be under 18 years old should only be interviewed in the presence a ‘responsible adult’. A ‘responsible adult’ for this purpose does not include a police officer or immigration officer. It could be a parent, guardian, representative or any adult who takes responsibility for the child, for example, from the Refugee Council’s Panel of Advisers. Children who apply for asylum will be screened on arrival by an immigration or screening officer, who may decide there and then on their age by simply judging the young person’s appearance. If the officer thinks the applicant is under 18, s/he should contact children’s social services immediately and inform them of the young person’s arrival.

Home Office definition

The Home Office defines an unaccompanied child seeking asylum as a person who, at the time of making an asylum application:

• Is under 18 or, in the absence of any documentary evidence, appears to be under 18
• Is applying for asylum in his or her own right
• Is separated from both parents and not being cared for by an adult who by law or custom has responsibility to

Age disputes

Visa restrictions make it very difficult for people to travel to the UK, particularly from refugee producing countries. Many countries, particularly developing countries, simply do not issue birth certificates or identity documents at all. For people who have suffered persecution at the hands of the state, approaching the authorities for travel documentation may not have been an option. As a result, many asylum seekers are forced to travel on false documents or they have no identity documents at all.

This can create particular problems for unaccompanied children or young people asylum if the Home Office disputes the age they claim to be. The young people may have had to use false documents making them out to be adults to travel to the UK on their own. Others may have no proof of their age at all. The Home Office policy states that UKBA staff should give young asylum seekers the benefit ofany doubt about their age. However, estimating the age of a child or young person can be extremely difficult and the Home Office often disputes the age of asylum applicants claiming to be under 18.

Officers must give clear reasons for disputing a person’s age and will overturn their decision on the basis of a properly conducted age assessment undertaken by a local authority. However, not all young people whose claim to be a child was disputed will be referred for an age assessment; if the officer believes that the person’s appearance ‘very strongly suggests’ that the applicant is ‘significantly over 18’ then the person will be treated as an adult and may be detained, possibly even removed, before the applicant is aware or able to get a second opinion.

Even where age disputed applicants have been referred for an assessment, they are not always supported as children or vulnerable young adults. Although the local authority can support as a child during the period of assessment many young people are supported as adults until the dispute isresolved. This can have significant implications for an applicant, as s/he will not benefit from child protection laws and may be supported as an adult until any dispute is resolved.

Children and young people may appear to be older than they are because of what they have experienced. For example, they may have experienced trauma or had to take on adult responsibilities at a very young age. Rates of physical development of children can also vary between different parts of the world, making a child appear older than they are.

At the time of writing the Home Office does not commission medical tests to help determine age. Legal representatives can apply for legal aid to arrange an independent medical assessment in age disputed cases, to help provide information to support the claim that an applicant may be a child. However, it is worth noting that medical assessments cannot be conclusive since the margin of error on either side is too great – sometimes as much as five years.

If the Home Office treats a young applicant as age disputed even though they claim to be a minor, it will issue them with an IS97M form. Applicants issued with an ARC, have ‘disputed’ marked on their card. However, if the officer has believed the person’s appearance to ‘very strongly suggest’ that they are ‘significantly over 18’ the applicant's documents will be changed to give them an adult date of birth. Please note that some of these applicants are subsequently assessed to be children, despite the apparent safeguard of the policy.

Legal representation

Like adults, unaccompanied children seeking asylum need good legal advice. Although there is no requirement that applicants have a legal representative, it is strongly advisable. This is particularly important for applications by children because the legal issues involved in applying for asylum are very complex and unaccompanied children and young people are especially vulnerable and in need of a skilled legal representative to help them explain their situation. Like with adult asylum seekers, the Legal Services Commission provides legal advice for unaccompanied children seeking asylum. See Legal Advice in this section.

The Legal Services Commission states that if a child raises an asylum issue in their appeal they should be considered to reach the standard required by the merits test and should therefore be guaranteed legal advice and representation for their appeal.

The Statement of Evidence Form for minors

Once unaccompanied children under 18 have been screened, they should get a statement of evidence form for minors (SEF(M)), which they must complete and submit within 20 working days. The answers provided in a SEF(M) must relate to the reasons for persecution. Unaccompanied children and young people also get a ‘human rights form’ or ‘one stop notice’ which explains that any claim under the Human Rights Act should be made at this initial stage rather than later on in the process.

Interview

The immigration rules allow the Home Office to interview children aged 12 and over about the substance of their claim or to find out their age or identity. The rules also state that in order for the Home Office to conduct the interview, a responsible adult must be present. Their role is to support the child and help him or her communicate during the interview. The interview cannot go ahead if there is no responsible adult present, although if the legal representative agrees to act as the responsible adult the Home Office would usually go ahead. The Refugee Council believes that this is not appropriate and that the legal representative and responsible adult should both be present in the interview. The caseowner interviewing the child should be trained in dealing with children.

Unaccompanied children should be able to get legal help for this. Legal representatives shouldalso apply for funding to attend interviews with age disputed applicants, as long as there is reason to think they may be under 18. When the Home Office disputes a person’s claim that they are under 18 years old, it often allows an adult to be present at the interview to avoid difficulties later on in the asylum process.

Detention

Home Office policy states that it will only detain unaccompanied children in exceptional circumstances; for example, if they arrive in the UK out of office hours and are held overnight. They may hold an applicant in detention if the immigration officer believes that the applicant’s appearance very strongly suggests that they are significantly older than 18 years of age or if a properly conducted social services assessment states that the person is an adult. If the Home Office treats the young person as an adult as a result of an age dispute and decides to detain, the young person is subject to the same conditions of detention as an adult asylum seeker.

Decisions

The way the Home Office considers asylum applications by young people is largely the same as for those made by adults. Every applicant has to show that they have a well founded fear of persecution for a Convention reason or that their human rights would be breached if they were returned home. The Home Office should not simply dismiss a young person’s application because they assume that they are too young to be involved in politics or hold political opinions. The social or political element of a child’s asylum claim may be due to them being a member of a particular social group, such as a tribe or ethnic group. Or it may be due to their vulnerability to exploitation through being trafficking, forced into military recruitment, or held in sexual or domestic slavery.

Persecution may also be a result of a child’s imputed political opinion, or the political beliefs or activities of members of their family. The Home Office therefore needs to look very closely at the child’s cultural background, family and political history to unearth any social or political element to their persecution. The Asylum Instructions published on the Home Office website set out what officials should consider when determining unaccompanied children’s applications.

Positive decisions

Unaccompanied children have the same rights as adults if they meet the criteria set out in the Refugee Convention or if they can prove that their human rights would be breached if they were returned home.

See Asylum Decisions for more information on entitlements for successful asylum applicants.

Refusal

If an unaccompanied child does not qualify for asylum or leave to stay in the UK on a human rights ground, the Home Office can only remove them to their home country if it can ensure that adequate reception and care arrangements are in place for them on arrival. This normally means locating parents or other close relatives in the country of origin that are willing and able to take care of the child. Otherwise it should grant discretionary leave for three years or until they turn 17 and a half - whichever period is shorter.

Granting discretionary leave does not give the child the right to stay in the UK on humanitarian grounds. It is a special kind of protection granted solely on the basis of the applicant being a child. This means they can be cared for in the UK until 18 when the Home Office considers them old enough to look after themselves. At this point the Home Office can return them to their home country without the need for special reception and care arrangements in place there. The Home Office cannot deal with unaccompanied children’s asylum applications under a fast-track procedure and therefore not certify them as ‘clearly unfounded’.

Children and young people also have the right to appeal against a refusal of their asylum or human rights claim (even though they have temporary discretionary leave), but only if they have limited leave for 12 months or more. For example, if a 16 and a half year old arrives and gets discretionary leave until 17 and a half, they cannot appeal against this decision because their leave is for less than 12 months. Unaccompanied children can apply to have their discretionary leave extended (regardless of the length of the leave), but must do so before it expires. If the Home Office does not receive the application for extension of current leave before it expires, the applicant becomes an overstayer.