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Comment: Britain’s unaccompanied migrant children should be supported, not abandoned
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Comment: Britain’s unaccompanied migrant children should be supported, not abandoned

Unaccompanied asylum-seeking children often get short term leave to remain in the UK for only 30 months or until they turn 17-and-a-half, whichever is the shorter period of time. While they may get extensions at the end of such periods often they simply get removed from the country. Thus, age 18 is a time of heightened uncertainty and fear for these children.

In April this year, the Independent reported that hundreds of asylum-seeking children were removed to disturbed regions which the UK government deems too dangerous to visit, such as Afghanistan, Iraq, Somalia and Sudan. A year back, the Guardian covered a number of suicides by young people who had taken their own lives after years of negotiating the asylum system.

These young people committed suicide around age 18. Instead of the age of majority, it was the time of deepest despair for them.  

The cracks of care

Yet there is a statutory duty to care for all children, whether migrant or not, through the Children Act 1989 (as amended in 2008). Section 20 of the Act states that every local authority shall provide accommodation for any child in need within the area who requires accommodation if there is no person who has parental responsibility for him/her.

However, these duties towards unaccompanied migrant children come to an abrupt end at age 18 when they come within the full scope of immigration detention and deportation powers. 

Fear of detention and forced removal sends some youths underground.  They choose to disengage from statutory services around age 18 because of this fear. Thereafter they enter the informal economy and are at risk of homelessness and destitution.

Many, who may have been in care when under 18, are forcibly returned when they turn 18, while others continue to exist in a state of limbo without access to education and safe housing. Lack of legal aid has also made it nearly impossible for young people to find adequate legal representation for challenging decisions that affect them.

Assessment: age or needs?

A recent case in the Court of Appeal recognised the manner in which unaccompanied migrant children may fall through the cracks of care services designed to help them, and end up in immigration detention. In BF (Eritrea) v Secretary of State for the Home Department [2019] EWCA Civ 872, a young person was repeatedly age assessed, sometimes determined to be a child and sometimes an adult. Lord Justice Underhill directed the Home Office to clarify its guidance on age assessments so that children were not at risk of being mistakenly treated as adults (and thus placed in detention and deported). 

Although local authorities should be supporting children they sometimes rely on Home Office assessments on whether a young person is a child prior to providing support. The Home Office can estimate age based on a person’s “physical appearance and demeanour”, a highly subjective process which often results in errors. 

The guidance stated that if a person’s appearance suggests they are “significantly over 18 years of age” they should be categorised as an adult. The person who claims to be a child can benefit from a margin of error built into this concept of “significantly”. However, the court found the phrase unlawful as it was vague and prone to generating errors in assessments.

The Home Office has now amended the guidance to direct assessors to look at whether the young person looks like they are over 25. If not, they should be treated as a minor for the purposes of age assessment in the absence of any other objective proof.

This is a positive development but it should lead to some rethinking on the needs of vulnerable young people, whether minors or not. 

Studies about unaccompanied migrant children show that they are a highly vulnerable group who have greater psychiatric distress than the general population. What can be done to prevent the loss of young people and to better support them?

In a recent article in the International Journal of Children’s Rights, I argue with co-authors Ann Singleton and Robbie Eyles that age 18 (or 17 and half for assessments) should not be a sharp point for excluding unaccompanied migrant youths from special protection of the law. British children in care can continue in care for longer periods than age 18 and studies indicate that continued care for longer periods (until the age 21 or even beyond if in full-time education) can be of real benefit to young people.

Plan of action 

The current news about the horrific conditions of child migrants held in cages in the US continues to shock us. But feeling shock is not enough. Other rich countries should condemn the practices in the US and closely examine their own practices towards child migrants. 

The UK Department for Education’s consultation and guidance on Corporate Parenting Principles, specify that unaccompanied migrant children are to be treated the same as any other children by local authorities. Thus, instead of focussing on age assessments which act to exclude young people from basic services, there should be an attempt to provide them continued access to resources for safe housing, health care and further education at age 18. The assessment should be for vulnerabilities and needs of young people — rather than whether they are 18 or not.

Devyani Prabhat

Dr Devyani Prabhat is a Reader in Law at the University of Bristol Law School, UK, with legal practice experience in Constitutional law. She holds a LL.M and a PhD from New York University and is an Attorney at Law, New York. She researches and teaches Migration, Citizenship and Nationality from a socio-legal and comparative perspective. Dr Prabhat supervises doctoral students researching on citizenship, migration, children's rights, human rights, the legal profession, and sociolegal theory and methods. She works closely with practitoners and civil society actors in a number of countries and has just edited a book on British Citizenship (Elgar 2019) which is based on academic-practitioner collaborations in the field of immigration law: https://amzn.to/32OQZPR

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