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Social workers can get settled status for EU kids in care without parental consent
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Social workers can get settled status for EU kids in care without parental consent

Here on Free Movement we have been repeating until we are blue in the face that the deadline for EU Settlement Scheme applications is 30 June 2021. Regular readers may by now feel rather bludgeoned over the head with this fact, but it remains a vitally important message given that even a tiny rate of non-applications amounts to many thousands of people becoming unlawfully resident overnight.

Among the groups of people radically unlikely to have picked up on the official messaging about immigration status deadlines is EU citizen children in care. The Home Office has already published guidance on the responsibilities of social workers in getting applications lodged on behalf of such children, but a survey in late 2020 found that only around half the 3,300 eligible kids in care had applied so far. And so the Family Division of the High Court has now weighed in on the issue, in an important judgment issued yesterday: W and Re Z (EU Settled Status for Looked After Children) [2021] EWHC 783 (Fam).

Legal mechanics of settled status for kids in care

“It is”, writes Mr Justice MacDonald, “essential that all local authorities understand and discharge the obligations towards eligible children in this regard in accordance with the law and guidance detailed in this judgment, so as to ensure that the entitlement of those children to remain in this jurisdiction, forming as it does a cardinal element of their stability, security and safety, is not jeopardised”.

The case concerned four Polish children, two in the care of Warwickshire County Council and two looked after by Northamptonshire County Council. Both councils applied to the High Court for permission to get the children Polish passports and then sign them up to the Settlement Scheme. The children’s parents, for various reasons, were unwilling or unable to give consent for this. The main question for MacDonald J was whether councils can crack on without consent in these circumstances by invoking their powers under section 33 of the Children Act 1989, or whether a High Court order in the exercise of its “inherent jurisdiction” is required each time this arises.

His answer: no court order required. Paragraph 60 of the judgment says:

i) Where the parent or parents of an EU, EEA or Swiss national child who has been made the subject of a care order under Part IV of the Children Act 1989 (a) oppose an application being made on behalf of the child for immigration status under the EUSS, or (b) cannot be located in order to ascertain whether they agree, in making the application to the EUSS on behalf of the child the local authority will ordinarily be entitled to proceed under the power conferred upon it by s.33(3) of the Children Act 1989 and will not first require the approval of the court.

ii) Where the parent or parents of an EU, EEA or Swiss national child who has been made the subject of a care order under Part IV of the Children Act 1989 (a) oppose an application being made on behalf of the child for passports or national identity documents to support an application for EU settled status, or (b) cannot be located in order to ascertain whether they agree, in making the application for the passport or identity document the local authority will ordinarily be entitled to proceed under the power conferred upon it by s.33 of the Children Act 1989 and will not first require the approval of the court.

That is because sorting out ID and applying for settled status is not among the small range of scenarios where the decision being made on behalf of the child is “so profound or enduring” that it is inappropriate to rely on section 33. Apart from anything else, a successful application “does no more than confirm the status quo with respect to the child’s immigration status in the UK”. 

The position is different when it comes to getting British citizenship for a child without parental consent. A change of citizenship, as distinct from mere immigration status, is profound and enduring: see Local authorities may need permission to get British citizenship for children in care.

MacDonald J added an important rider (emphasis in original):

I wish to make abundantly clear that this does not remove the duty on the local authority in each case where an order is in force to satisfy itself that an application for immigration status under the EUSS will safeguard and promote the welfare of the subject child for the purposes of s.33(4) of the 1989 Act or, where a placement order is in force, that such an application is in the child’s best interests for the purposes of s.1(2) of the 2002 Act.

Where a particular EU country requires a court order before it will process passport applications for children without parental consent, the High Court can still make such an order under the inherent jurisdiction (see paragraph 76).

The key points from the judgment are summarised at paragraph 79 of the judgment, reproduced in full below.

Late applications are possible, but undesirable

It might be thought that it is a little late in the day for councils to be still scrambling around to sort this out, particularly if they are still at the stage of applying for ID documents. But, to soften the dire warning we gave at the outset, there is some flexibility on the deadline. Late applications are possible and the Home Office updated its guidance today to flesh out the circumstances in which it will accept them. The document now specifies, as an example of “reasonable grounds” for failing to meet the 30 June deadline, a scenario where “an application to the scheme was not made on their behalf years earlier when they were a child by a parent, guardian or Local Authority”.

Nevertheless, our advice on this point is not to delay beyond the deadline if at all possible, even if the child has no passport. Get an application in with some other documents indicating the child’s identity and nationality instead (see now, on this exact point, paragraphs 36 and 75 of the High Court judgment). There is a dedicated helpline within the EU Settlement Resolution Centre that social workers can use to check with caseworkers whether a given set of alternative ID evidence will do. 

Summary of judgment in W and Re Z

Paragraph 79 of MacDonald J’s judgment reads as follows:

Within the foregoing context, and in summary, I am satisfied that the following points must be borne in mind by local authorities with respect to the question of immigration status under the EUSS for children who are looked after by the local authority, care leavers and children in need:

i) The deadline for applications to the EUSS is 30 June 2021. The necessary application must be made in a timely manner so as to ensure the relevant deadline is met and to minimise uncertainty for the subject child. It is not acceptable to leave children in a position of ‘limbo’ with respect to their immigration position.

ii) Reliance should not be placed on the discretion afforded to the Secretary of State for the Home Department to admit late applications after the expiration of the deadline on 30 June 2021 as a reason for failing to act in a timely manner. A late application will result in the child becoming undocumented for a period, with the concomitant impact on access to services and benefits and liability to immigration enforcement. Even a short period undocumented can have an adverse impact on a child or young person.

iii) Issues of immigration status with respect to looked after children must in each case be addressed early as part of any assessment and care plan, including establishing the child’s current immigration status and, where necessary, seeking legal advice about appropriate action concerning immigration status having regard to the care plan in respect of the child.

iv) The obligation on local authorities to identify children who are eligible to make an application under the EUSS and provide support to those children is a mandatory one.

v) The obligation on local authorities to identify children who are eligible to make an application under the EUSS and provide support to those children extends beyond those children who are looked after by reason of being the subject of a care order to children who are looked after by reason of being accommodated by a local authority pursuant to s.20 of the Children Act 1989, to children who are the subject of placement orders, care leaves under ss. 23A to 24D of the Children Act 1989 and the Care Leavers (England) Regulations 2010 or Care Leavers (Wales) Regulations 2015 and to any other children in receipt of local authority support, including children in need and children who are lost or abandoned.

vi) With respect to children who are looked after by reason of being accommodated by a local authority pursuant to s.20 of the Children Act 1989, care leaves under ss. 23A to 24D of the Children Act 1989 and the Care Leavers (England) Regulations 2010 or Care Leavers (Wales) Regulations 2015 and any other children in receipt of local authority support, including children in need, the local authority must follow the guidance issued by the Home Office and in particular remain cognisant of the obligation upon it to ensure that those with parental responsibility for the children are aware of the need to make an application to the Scheme, signpost them to the Scheme, explain its importance, offer practical support and monitor closely the progress of any application.

vii) With respect to children who are lost or abandoned for whom there is no one with parental responsibility, the local authority must discharge fully its duties under s.22(3) of the Children Act 1989 in assisting eligible children who are lost or abandoned to secure immigration status under the EUSS.

viii) In respect of each child looked after by reason of being the subject of a care order or who is the subject of a placement order who is also an EU, EEA or Swiss national, a local authority is required to consider whether or not to apply immigration status under the EUSS on behalf of that child or to assist the child to do so and, if necessary, to seek the documentation necessary to make such an application, namely a passport from the child’s country of nationality or other acceptable form of national identification. In making applications under the EUSS, the local authority should apply the guidance issued by the Home Office.

ix) The question of whether an application should be made for immigration status under the EUSS for a looked after child who is the subject of a care order is a matter that is properly within the remit of the IRO having regard to the functions of an IRO as set out in s.25B of the Children Act 1989 and Part 8 of the Care Planning, Placement and Case Review (England) Regulations 2010 which includes monitoring the performance by the local authority of its obligations with respect to a looked after child.

x) Ordinarily, in respect of a child for whom it holds parental responsibility under a care order or a placement order, the local authority will be able to proceed to make the application under the EUSS pursuant to the power conferred upon it by s. 33(3) of the Children Act 1989 or s.25 of the Adoption and Children Act 2002. It is ordinarily neither necessary nor appropriate for a local authority to refer the matter to the High Court where a parent opposes the grant of settled status to a child for whom the local authority holds parental responsibility.

xi) Ordinarily, in respect of a child for whom it holds parental responsibility under a care order or placement order, the local authority will likewise be able to proceed to make an application to renew a child’s passport or national identity card pursuant to the powers conferred on it by s.33 of the Children Act 1989 or s.25 of the Adoption and Children Act 2002, subject to being able to fulfil the legal requirements for such an application laid down by the State authority responsible for issuing the passport. It is ordinarily neither necessary nor appropriate for a local authority to refer the matter to the High Court where a parent opposes the issue of a passport or national identity card to a child for whom the local authority holds parental responsibility.

xii) The process under s.33(3) of the Act or s.25 of the Adoption and Children Act 2002 is not however, merely an administrative one. In exercising its statutory power in each case the local authority must satisfy itself that, where the child is looked after by reason of being the subject of a care order, an application for immigration status under the EUSS and, where necessary, an application for a passport or national identity card will safeguard and promote the welfare of the subject child pursuant to s.33(4) of the 1989 Act and, where the child is the subject of a placement order, that an application for immigration status under the EUSS and, where necessary, an application for a passport or national identity card, is in the best interests of the child pursuant to s.1(2) of the Adoption and Children Act 2002.

xiii) The child’s wishes and feelings should always be considered. Where of sufficient age and understanding, children should be made aware their entitlement to independent advocacy support and the local authority should facilitate this access where required.

xiv) Whilst parents’ views should be obtained and appropriately considered with respect to both applications for immigration status under the EUSS and for the provision or renewal of passports or other national identity documents, those views should not be viewed as determinative unless they have a real bearing on the child’s welfare.

xv) In cases where parental opposition or absence mean that the procedural requirements of the State authority responsible for issuing the passport or national identity card include a requirement that the application be supported by a court order then, before issuing an application for such an order, the local authority must first seek to confirm with the Home Office Settlement Resolution Centre whether the any documents that the child already has available are sufficient for the purposes of the EUSS application. Only if they are not, and no other acceptable documents exist, should an application to court under the inherent jurisdiction be contemplated by the local authority.

xvi) There may be a very small number of cases in which proceeding under s.33 of the Children Act 1989 or s.25 of the Adoption and Children Act 2002 with respect to an application for immigration status under the EUSS will not be appropriate. In this context, whilst the vast majority of cases will be suitable to be dealt with under the power conferred by s.33(3) of the 1989 Act or s.25 of the 2002 Act, local authorities must remain alive to the possibility of cases that do, exceptionally, require the intervention of the court.

xvii) Where a parent opposes the course chosen by the local authority pursuant to the power conferred upon it by s.33(3) of the Children Act 1989, and whilst recognising the inherent difficulties for often unrepresented parents for whom English is a second language, it remains open to the parents to make an application to invoke the inherent jurisdiction and may, if necessary, apply for an injunction under s. 8 Human Rights Act 1998 to prevent the applications being made or determined before the matter comes before a court for adjudication.

CJ McKinney is Free Movement's editor. He's here to make sure that the website is on top of everything that happens in the world of immigration law, whether by writing articles, commissioning them out or considering pitches. CJ is an adviser on legal and policy matters to the Migration Observatory at Oxford University, and keeps up with the wider legal world as a contributor to Legal Cheek. Twitter: @mckinneytweets.

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