UKBA has published a new policy on dealing with children, specifically asylum applications by unaccompanied children. It went ‘live’ on 1 September 2010 and can be found with the earlier link or in the Asylum Process Guidance Special Cases section.
The policy is a considerable improvement on the previous version. For example, the UN Convention on the Rights of the Child comes front and centre in the policy. It states that only specially trained case owners should handle child cases and the guidance explicitly applies to Presenting Officers, who presumably now will be receiving special training. The best interests of the child and the section 55 duty on UKBA to safeguard and promote the welfare of children also receive prominent billing in the policy.
Section 13 on gathering evidence from children looks good and will be relevant at appeals. Similarly, section 16 on assessing the claims of children is also good and will be relevant at appeal. Section 20.1 is good on liaison between UKBA and local authorities in the event of a decision to return to country of origin.
Not a lot is said about what ‘best interests’ might mean or how to assess it. Section 17.7 on family reunion is interesting and sort of sets up a rebuttable presumption that family reunion will always be in a child’s best interests. A helpful list of factors relevant to best interests is set out at 17.8. However, at 17.8.2 comes a very contentious instruction, which is very likely to be subject of litigation:
Only if it is decided that the child’s best interests are outweighed by the need to uphold immigration control, should the child be refused outright.
It is clear that UKBA take the view that the best interests of the child can be overridden by the need to maintain immigration control. Logically, this must mean that even if it is in a child’s best interests to remain in the UK, he or she might be removed even though this is purely because the child has no immigration status. Many specialist lawyers would take the view that best interests cannot be balanced against the ‘need’ to maintain immigration control, and that this is inconsistent with making best interests a ‘primary’ consideration. How many ‘primary’ considerations can there be? It is a little reminiscent of the incoming New Labour Government in 1997, whose top priorities were education, education, education. And health. And crime. And defence.
The Spanish Inquisition sketch might be a better analogy.