Parents without Leave : A Reference Point On How to Submit An Asylum Claim for an Accompanied Child in the UK

child_holding_handA parent may not have a reason for advancing a claim for asylum  whilst their minor  child does.  That child can claim asylum. The parent does not have to.

In addition, the relevant child seeking to claim asylum  might have  resided continuously in the UK fort at least 7years. That  child can claim asylum and have  his or her  reliance  upon the 7 year Rule  also considered at the same time as the asylum claim without the  child needing  to  pay  a Home Office application fee or  the NHS Health Surcharge via a charged application.

A settled relative in the UK  might be responsible for a child without leave, but with that  child  fearing   return to  her country of origin because   her parents will  force her to marry or subject  her to FGM. That child can claim asylum in the UK.

The intention is first and foremost for the child to be protected and also  obtain leave to remain in the UK.

(1)Who is an accompanied asylum seeking child?

An asylum claim can be made by or on behalf of a child in their own right whether accompanied or unaccompanied. The terms ‘child’ or ‘children’ refer to people who are under 18 years of age. Where the age of the claimant (and their status as a child) is in doubt,  age assessment  issues come into play.

An accompanied asylum seeking child is one who is being cared for either by parents or by someone who in law or custom has responsibility to do so.

If a child is accompanied by an adult already in the UK and would like to remain with them, Home Office staff first verify the identity of the adult. Where the child claims to be related to the adult, Home Office staff must establish whether the relationship is as claimed by asking for documentary proof. The adult  will be asked to show a passport, a photocard driving licence or (if appropriate) Home Office documentation.

Where the Home Office is  satisfied with both the identity of the adult and their relationship with the child, local authority children’s services must be advised of:

  • the arrival of the child

  • the child’s address

  • the relationship with the sponsor

If no documentary evidence is available, the Home Office  refer the child to local authority children’s services to take appropriate action.

The Home Office must request written confirmation by letter, fax or email from the local authority that they are satisfied with the child’s living arrangements. If this is not received, the  Home Office  must immediately request an update from the local authority and ensure that appropriate action is being taken.

(2)Who is an unaccompanied asylum seeking child?

An unaccompanied asylum seeking child is defined by paragraph 352ZD of the Immigration Rules as one who is:

  • under 18 years of age when the claim is submitted

  • claiming in their own right

  • separated from both parents and is not being cared for by an adult who in law or by custom has responsibility to do so

Local Authorities in England and Wales have a duty under sections 17 and 20 of the Children Act 1989 to provide support for children in need.This will include unaccompanied asylum seeking children if they meet the relevant statutory criteria. Section 17 places a general duty on every local authority to safeguard and promote the welfare of children in need within their area by providing services appropriate to those children’s needs. Section 20 requires every local authority to provide accommodation for children if:

  • there is no person who has parental responsibility for them

  • they have been lost or abandoned

  • the person who has been caring for them has not been able to provide them with suitable accommodation

The type of accommodation provided to the child will depend on the local authority’s assessment of their needs. In general, a child aged under 16 is likely to be placed with a foster parent or in a children’s home, whilst children aged over 16 may be placed in more independent living arrangements.

Where an unaccompanied child applies for asylum, the home office  must first consider whether they qualify for asylum, Humanitarian Protection , or leave to remain on the basis of family or private life under Appendix FM or paragraph 276ADE(1) of the Immigration Rules (or leave outside the Immigration Rules  for Article 8 reasons) and then Discretionary Leave on any other basis.

Where an unaccompanied child qualifies for leave on more than one ground, they should normally be granted the leave that provides the longest period of stay.

From 6 April 2013, the policy on granting limited leave to unaccompanied children refused asylum and humanitarian protection and where there are no adequate reception arrangements in the country to which they would be returned, was incorporated into paragraphs 352ZC to 352ZF of the Immigration Rules. Unaccompanied children who meet the requirements of these Rules are granted limited leave, normally for 30 months or until the applicant is 17.5 years of age, whichever was the shorter period.

Where an unaccompanied child does not qualify for protection, it will normally be appropriate for the child to reunite with their family in their country of origin, provided that safe and adequate reception arrangements are in place and subject to an assessment of their best interests. The Home Office must take into account the best interests of children as a primary consideration (although not necessarily the only consideration) when considering whether to grant leave. The starting point  for the home office  is that a child’s best interests are likely to be best served by reuniting them with their family, unless there are protection needs or safeguarding concerns.

Being unaccompanied is not necessarily a permanent status and may change, particularly if the child has family members in the UK. Claims from unaccompanied asylum seeking children are complex and deserve entirely  separate consideration of their own.

(3)Asylum seeking children and previous dependency on main  asylum applicant:

Dependants of an asylum applicant who have been included in the initial asylum claim will, if the principal applicant is granted Asylum, Humanitarian, Family or Private Life leave to remain or Discretionary Leave, normally be granted leave of the same duration and status as the principal applicant.

However, asylum claims from children who were previously dependent on another application must be considered by caseworkers trained to handle claims from children.

Paragraph 349 of the Immigration Rules sets out who may be considered as dependants of the principal applicant in an asylum claim. A spouse, civil partner, unmarried or same-sex partner, or minor child who is accompanying the principal applicant and does not wish to claim asylum in their own right will normally be treated as a dependant provided, in the case of an adult dependant with legal capacity, they consent to be treated as such at the time the application is lodged.

Family members are entitled to make an asylum claim in their own right regardless of whether they consent to being treated as a dependant of the principle applicant. A family member can simultaneously remain dependent on another person’s claim whilst also making a claim in their own right. If an independent claim is made this must be considered individually in accordance with paragraphs 328 to 333B of the Immigration Rules.

Dependants are entitled to claim asylum in their own right and all adults should be asked separately and confidentially, away from their partner, if they wish to apply for asylum in their own right during the screening process. A dependant is not required to withdraw their claim as a dependant if they make a claim in their own right.

Paragraph 349 of the Immigration Rules states that family members dependant on the principal applicants asylum claim, may claim asylum in their own right and their applications will be considered individually irrespective of the outcome of the principal applicants claim. Family members may lodge their own asylum claim at any time during their stay in the UK. They can claim:

  • In their own right and choose not to remain dependant on the principal applicants claim;

  • In their own right and remain as a dependant on the principal applicants claim;

  • After the principal applicant’s asylum claim has been refused, apply as the principal applicant with the former principal applicant as their dependant.

  • As the principal applicant, after the principal applicant has been refused, without the principal applicant as a dependant.

Even though the individual was previously treated as a dependant, they should be treated as a principal applicant for the purposes of the decision. This includes for example, issuing a Reasons for Refusal letter and associated rights of appeal where this applies.

All dependants should have been served with a one stop notice under section 120 of the Nationality, Immigration and Asylum Act 2002. The aim of the one-stop procedure is to encourage applicants to provide all their reasons for wanting to enter or remain in the UK as early as possible to allow full consideration of applications, taking into account all relevant evidence. Late applications made by former dependants must be considered but, where the application relies on a matter which could or should have been raised earlier and where there is no satisfactory reason provided or identified for it not having been raised earlier, the home office can consider certification of the claim.

Asylum claims made by former dependants should be considered on their own merits, in the same way as other asylum claims. Whilst delay in claiming asylum in their own right will be a factor that should be addressed, Home office caseworkers must provide an opportunity for the applicant to explain and any reasons given for failure to disclose information earlier must be given careful consideration. It is not appropriate to reject the claim on the basis of the delay in claiming alone and caseworkers must consider any new material, including any reasons for the delay, in the round and in the context of all the evidence available.

If the dependant claiming asylum in their own right has previously been served with a section 120 one-stop notice as a dependant (or on another basis) and failed to raise asylum or human rights issues in the Statement of Additional Grounds, certification under Section 96 may be appropriate if the present claim now falls for refusal. Section 96 is intended to prevent people raising matters at the last minute to frustrate removal. However, a certificate should not be issued unless and until the application by the former dependant has been carefully considered.

If no section 96 certificate is issued, caseworkers must consider whether case by case certification or designated state certification under section 94 of the 2002 Act may be appropriate.

(4)Age Assessments:

Asylum applicants who claim to be children may not have any definitive documentary evidence to support their claimed age, and as such a decision on their age  would need to be made.

Where there is little or no evidence to support the applicant’s claimed age and their claim to be a child is doubted, the following is  applied by the  Home Office:

  • The applicant should be treated as an adult if their physical appearance / demeanour very strongly suggests that they are significantly over 18 years of age.

  • Before a decision is taken to assess an applicant as significantly over 18, the assessing officer’s countersigning officer (who is at least a Chief Immigration Officer (CIO)/Higher Executive Officer (HEO)) must be consulted to act as a ‘second pair of eyes.’ They must make their own assessment of the applicant’s age. If the countersigning officer also agrees to assess the applicant as significantly over 18, the applicant should be informed that their claimed age is not accepted and that their asylum claim will be processed under adult procedures. Home Office Case owners should nonetheless review decisions to treat applicants as adults, if they receive relevant new evidence.

  • All other applicants should be afforded the benefit of the doubt and treated as children, in accordance with the ‘Processing an asylum application from a child Asylum Instruction , until a careful assessment of their age has been completed. This policy is designed to safeguard the welfare of children. It does not indicate final acceptance of the applicant’s claimed age, which will be considered in the round when all relevant evidence has been considered. Where it is not possible to obtain a local authority age assessment a decision on the age of the applicant should be made on the basis of all other sources of information available, with the benefit of the doubt applied in the applicant’s favour.

An original and genuine passport, travel document, or national identity card in the applicant’s name, which the Home Office can verify as genuine, and which shows that an applicant is under 18 years of age at the time of the application, will usually be sufficient proof of age. Photocopies or faxed copies of these documents will carry considerably less weight as evidence of age.

An original and genuine birth certificate in the applicant’s name will normally be acceptable proof of the applicant’s age, provided that it is accompanied by other genuine official documentation bearing a photograph of the holder, e.g. a military card, identity card, government pass, etc. Where there is no other genuine official documentation to support the birth certificate, it should still be considered alongside all the other evidence, but will not necessarily be considered determinative.

Where there is evidence of age based on a biometric visa match, it should be dealt with on a case-by-case basis. Photocopies of visa applications are accepted by the home office. The visa application should be considered ‘in the round’, especially where there is other evidence of age.

Home Office policy is that if an applicant submits a report written by a practising consultant paediatrician that concludes the applicant is or may be under 18 years of age at the time of the application, this must be fully considered alongside any other relevant evidence and given appropriate weight. However,  home office policy is that care must be taken with such reports as the margin of error can be considerable and the reasons for the paediatrician’s conclusion on age may not always be clear. The Royal College of Paediatricians, in their guidance on age assessment, are noted to  have said that in practice, age determination is extremely difficult to do with certainty because it is an inexact science where the margin of error can sometimes be as much as 5 years either side. ‘The health of refugee children: guidelines for paediatricians’, Royal College of Paediatrics, chapter 5.6, November 1999).   Any reports from paediatricians that purport to give an assessment of age within a narrower margin of error than the one set out in the Royal College’s guidelines are treated  with caution by the Home Office. In  some instances, applicants will submit reports from dental consultants based on a detailed assessment of dental development.  The margin of error in determining age through this process is approximately plus or minus 2 years or less, for 95% of the population (The health of refugee children: guidelines for paediatricians’, Royal College of Paediatrics and Child Health, chapter 5.6.3, November 1999). This means there will be cases where such reports should be given considerable weight – for example because the applicant’s claimed age is within the possible range.

If a decision is taken to reject the dental age assessment the home office  case owner must state clearly their reasons for doing so, and the applicant must be informed in writing. According to home office policy, similar care is required when considering assessments of bone-age involving x-rays (most likely, of the hand) where variations may be due to differences in the timing of the onset of puberty and the whole process of skeletal maturation, which may themselves be affected by illness, nutrition and ethnic variations. The child’s medical, family and social history will therefore need to have been taken into account in any such assessments. (‘The health of refugee children: guidelines for paediatricians’, Royal College of Paediatrics and Child Health, chapter 5.6.1, November 1999).

(5)The Refugee Convention:

In making a decision on a claim for asylum,  the Home Office consider whether the claimant meets the definition of a refugee as set out within the Refugee Convention. Only those with a well-founded fear of persecution on account of one or more Convention reasons (i.e. race, religion, nationality, and membership of a particular social group or political opinion) should be recognised as refugees.

To qualify for asylum (or Humanitarian Protection), an individual not only needs to have a well-founded fear of persecution, they must also demonstrate that they are unable, or unwilling because of their fear, to avail themselves of the protection of their home country, however the concept of ‘sufficiency of protection’ does not apply if the actor of persecution is the state itself or an organisation controlling the state.

As regards issues of internal relocation, the question to be asked is whether the claimant would face a well-founded fear of persecution or real risk of serious harm in the place of relocation, and whether it is reasonable/unduly harsh  to expect them to travel to, and stay in that place. This requires full consideration of the situation in the country of origin, means of travel, and proposed area of relocation in relation to the individual’s personal circumstances.

If the claimant has a well founded fear of persecution or real risk of serious harm in one part of the country of return and it is not reasonable to expect them to live in another part of that country, they should be granted asylum (or Humanitarian Protection) rather than another form of leave.

Child Specific Persecution: When considering whether a child qualifies for refugee status,  the home office take the following into account in relation to issues of child specific persecution :

  • forcible or underage recruitment into military service

  • family or domestic violence

  • infanticide

  • forced or underage marriages

  • discrimination against street children

  • female genital mutilation (FGM)

  • forced labour

  • forced prostitution

  • child pornography

  • trafficking

  • children born outside of strict family planning laws and policies

Forms of gender-related persecution: Gender may inform an assessment of whether one of the five Convention grounds does apply i.e. race, religion, nationality, membership of a particular social group or political opinion. Gender issues may be relevant in assessing persecution when:

  • the form of persecution experienced is gender-specific or predominantly gender-specific: for example, rape and other forms of sexual violence, domestic violence, crimes in the name of honour, female genital mutilation (FGM), forced abortion and sterilization; and/or

  • the reason for persecution is gender-based, i.e. the applicant fears persecution on account of her or his gender or gender identity.

The ways in which gender is also relevant to a woman or man’s experience of persecution include:

  • gender-specific persecution for reasons unrelated to gender (e.g. raped because of holding or expressing a political opinion);

  • non-gender-specific persecution for reasons relating to gender (e.g. flogged for not adhering to the codes of a religion e.g. refusing to wear a veil); or

  • gender-specific persecution because of gender (e.g. female genital mutilation (FGM)).

There are many forms of harm that are more frequently or only used against girls and women. These can occur in the family, the community, or at the hands of the State. They include, but are not limited to:

  • marriage-related harm (e.g. forced marriage);

  • violence within the family or community (e.g. honour killings) ;

  • domestic slavery;

  • forced abortion;

  • forced sterilization

  • forced prostitution;

  • trafficking;

  • female genital mutilation;

  • sexual violence and abuse; or

  • rape.

Harmful Traditional Practices: As regards harmful traditional practices such as female genital mutilation (FGM), forced or under-age marriages (under-age marriages) the fact that such harm is based on widespread social customs or conventions does not mean that it is not persecution. The efforts of the state and its willingness and ability to protect a child against these harmful practices, as well as the actions taken towards its eradication, must form part of the consideration of future risk. It is important to note that although a particular State may have introduced measures prohibiting such practices, it may nevertheless continue to condone, tolerate or ignore the practice and may be unable or unwilling to stop it effectively. In such cases the practice might still amount to persecution on the basis of no sufficiency of protection and there might still be a link to one of the 5 Refugee Convention grounds.

Child soldiers: The forced conscription of a child into armed forces under the age of 18 is inconsistent with international law ILO Convention on the Worst Forms of Child Labour 1999 (Article 3) and CRC Optional Protocol on the Involvement of Children in Armed Conflict (Article 2). A child recruited by non-state armed groups may also fall within this category. The serious long term physical and psychological effects on the child’s development and welfare mean that the use of children in hostilities constitutes a serious form of persecution. Conscription of a child under 15 is considered a war crime and this is irrespective of whether the child was forcibly conscripted or they volunteered. Where the ‘voluntary’ recruitment of children aged 15-18 years forms part of the claim, consideration must be given to the extent to which other factors may also have been involved, such as where there was vulnerability to recruitment due to poverty or separation from family.

The Home Office must consider the likely treatment of former child soldiers on return to their country of origin as a relevant factor in the assessment of future risk. They may be in danger of re-recruitment or military punishment, or may be subject to stigmatization, harassment, or ill treatment by their community because of their past activities. Reference must be made  to the relevant country policy information for specific information. The state of mind of former child soldiers needs careful consideration. Characteristics of this vulnerable group of children may include distrust of adults, guilt and fear of reprisal.

Religion – In some states, a person’s religion requires them to behave in a certain way and this can apply to a child. If a child does not behave as expected, for example a female refusing to wear a particular type of religious garment or refusing to obey prescriptive gender roles, they may have a well-founded fear of being persecuted for reasons of religion. There is frequently an overlap between the grounds of religion and political opinion in age related claims, especially regarding imputed political opinion. Religious tenets may require certain kinds of behaviour and contrary behaviour which may be perceived as evidence of an unacceptable political opinion that threatens the basic structure of power. This is particularly true in societies where there is little separation between religious and state institutions and laws and doctrines. The Home Office caseworkers are  required to also bear in mind that children may not be aware of why their particular religion faces persecution even if they have been subject to the consequences.

Political opinion- Imputed or perceived political opinion may be relevant for a child as they may be targeted as a member of a politically active tribe, clan, community or family. It may also be because the persecutor wants to extract information or co-operation from politically active family members or to punish them. In such cases the child might not even know what the adults’ political activities or opinions are.

A child can be politically active and hold particular political opinions independently of adults for which they may fear being persecuted. For example, children may be involved in the distribution of pamphlets, participation in demonstrations, and acting as couriers or otherwise be engaged in perceived subversive activities. These activities may be considered politically active in other countries, but not in the UK.

Membership of a particular social group- Age groupings such as children, young men or young girls may constitute a particular social group, but this will depend on the specific country context. This can include, but is not limited to the treatment of the group, how they are perceived within that society and the laws of the relevant country. The Home Office caseworkers  must bear in mind that at any given point, a child’s age may be considered an immutable characteristic – notwithstanding the fact that the child will ultimately grow out of their present age group. Although it should be possible to identify the group independently of the persecution, discrimination or persecution may be a relevant factor in determining the visibility of the group within a particular context. Caseworkers must also be aware that other particular social groups may be identifiable, such as street children, HIV/AIDS-affected children, children in the armed forces or lesbian, gay, bi-sexual and refugee status instruction and the relevant country specific policy guidance.

Child abuse- Where an  allegation of child  abuse is central to the claim for asylum or humanitarian protection, the Home Office must consider the following:

  • whether the alleged abusers are family members or those who could be state or non state agents?

  • whether the child is at future risk of abuse for a Convention reason e.g. political opinion?

  • whether there is adequate child protection safeguards in place i.e. sufficiency of protection?

  • whether if the child is returned, would there be a future risk or can they be returned to a safe environment?

The Home Office will refer  any allegations of abuse disclosed by a child to the local authority and/or police in all circumstances.

(6)How to Claim Asylum as a Child:

A child who is  not in the care of social services should use the walk-in service at the asylum screening unit. If the child has  an adult who is legally responsible for  them,  that adult must attend the walk-in service at the asylum screening unit with  the child.

If living with several relatives the closest blood relative willing to take responsibility for  the child  must attend. The adult must provide proof of address and photo ID (passport or driving licence).

The asylum screening unit is in Croydon, near London:

Lunar House, 40 Wellesley Road ,Croydon, CR9 2BY

The child  may however  be asked to come back another day if  they  arrive without an appointment with an adult.

Where a child does not have an adult who is legally responsible for them, they should go to the police or social services, or  they can walk into the asylum screening unit.

Where the child is in the care of social services, they  must book an appointment at the asylum screening  unit  by calling the appointment booking line.

Asylum screening unit appointments line:

Telephone: 020 8196 4524 Monday to Thursday, 9am to 4:45pm Friday, 9am to 4:30pm

The following information is required when  booking  the  appointment:

  • the child’s name, date of birth and nationality

  • the number on the child’s passport or national identity document, if they have one – or the number on their birth certificate, if they don’t

  • the child’s foster carer’s name and contact details

  • details of any medical conditions    the child has

The asylum screening process can take up to 4 hours.

Home Office staff who come into contact with a child who is with an adult who is not a parent, a relative or someone who has parental responsibility for the child, are required to contact the relevant local authority administration lead and social care team so that appropriate checks can be made to confirm the suitability of this care for the child. Home Office staff must always notify the relevant local authority contact of the arrival of an asylum seeking child in their area at the earliest possible point so that the local authority can consider the best course of action for that specific case.

(7)Responsible adult :

A responsible adult must be present when fingerprints are taken from a child under 16 years of age.

Suitable people to perform this role include (but are not limited to):

  • a social worker

  • a local authority key worker

  • a relative

  • a foster carer

  • a Refugee Council representative or charity worker

In some cases, and only with the consent of the child, the child’s legal representative may also act as the responsible adult. The legal representative must confirm that they are willing to take on this additional role.

The role of the responsible adult includes, but is not limited to:

  • providing independent support to the child

  • looking after the well-being of the child so they feel able to participate in the asylum procedures in a way that meets their welfare needs and recognises their maturity

  • raising any welfare issues that the Home Office caseworker needs to be aware of, before, during or after interviews so that the welfare needs of the child are actively considered throughout that process

  • attending the substantive asylum interview and ensuring that the child feels comfortable during the interview process

  • ensuring that the child understands the interview process

  • providing moral support and reassurance as necessary to the child

  • facilitating communication between the child and the interviewing officer where necessary

  • ensuring that all welfare needs relating to the child are sufficiently provided for during the interview process, such as adequate breaks and refreshments

  • offering any additional information to the interviewing officer which may have a bearing on the child’s emotional wellbeing and fitness for interview (for example, bringing to the other’s attention that the child is fasting or mentioning that they have had a long journey and an early morning start to attend the interview)

8)The Adult Screening Interview verses The Welfare interview:

Children are no longer required to have the same screening interviews as adults, but must undergo a welfare interview and a series of checks.

There is no requirement for legal representation at first encounter because the child should not be asked questions about issues that relate to the asylum claim. The immediate priority is the child’s welfare

The Home Office will always provide a qualified and professional interpreter for each stage of the asylum process if the claimant is unable to speak English. However, legal representatives may also bring their own interpreters. The role of the representative’s interpreter is to act as an observer and they must only make comments at the end of the interview unless they relate to a serious discrepancy in translation or because the child has not understood something.

(9)The Welfare form:

Once any immediate welfare concerns have been addressed, the welfare form must be completed. It is not necessary to have a responsible adult there when it is completed, but if one is present they may attend.

The purpose of the welfare form is to obtain information that is necessary for a meaningful booking-in process, including bio data and information relating to the child’s needs and welfare concerns.

It cannot be used to examine the basis of the claim for asylum. Paragraph 352 of the Immigration Rules states that a parent, guardian, representative or another adult independent of the Secretary of State with responsibility for the child must be present when an unaccompanied child is interviewed about the substance of their claim.

Therefore a child must not be asked to explain or elaborate on why they are afraid to return to their home country when completing the welfare form. Home Office staff must take particular care to ensure that questioning does not go beyond inviting a response to the questions on the form. The child must be informed that they will have an opportunity to explain these details at a later date.

It may be that details or information relating to the substance of their asylum claim are nevertheless volunteered by an unaccompanied child on initial encounter or while the welfare form is being completed. Home office Asylum caseworkers are directed that they must never rely on information obtained from an interview where no responsible adult or legal representative is present unless this information has also been explored and raised with the claimant during the substantive asylum interview in the presence of a responsible adult or legal representative. The child must be given an opportunity to explain any related issues or inconsistencies.

If the child provides any information that raises concern, for example about trafficking or exploitation issues, reference must be made to a senior manager (minimum SEO or HMI). If the information relates to criminal activity, the officer must contact the police as a matter of urgency.

A copy of the form must be given to the social worker and the original form placed on the child file.

Home Office staff completing the welfare form must ensure that the child is referred to the Refugee Council Panel of Advisers: Children’s Panel. If it has not been done, or if it is not apparent that it has been done, a referral must be made immediately.

(10)Actions to take after completing the welfare form:

Fingerprinting an asylum seeking child: All children aged 5 or over must have their fingerprints taken. Children under the age of 5 need not be fingerprinted; however their photographs must always be taken. It is a legal requirement that a parent, guardian or a responsible adult is present when the fingerprints of a person under 16 years of age are taken. The responsible adult must be entirely independent of the Home Office. The social worker can act as the responsible adult while the child’s fingerprints are captured.

Third Country Unit referral: The fingerprints of all children aged 14 and older who have lodged an asylum claim in the UK must be transmitted to the Eurodac database as soon as possible and no later than 72 hours after the lodging of the application. If there is a Eurodac match, a referral must be made to Third Country Unit (TCU) who will consider next steps. Where the child indicates they have family or relatives present in another EU Member State or States (including Iceland, Norway, Switzerland or Liechtenstein), a referral must also be made to TCU as the child may be reunited with family members in a different EU Member State where the family or relatives are present under the provisions of the Dublin III Regulation.

Referral to the National Asylum Allocation Unit : Once the welfare form has been completed, the details of the child must be referred to the National Asylum Allocation Unit who will allocate the case to a case working team. The most appropriate case working team will depend on whether the child remains within the local authority area or is transferred to the care of another local authority under the UASC National Transfer Scheme. They will, at the appropriate time, allocate the case to an appropriate team. The details of the case working team that will process the asylum claim will be included on the Statement of Evidence Form (SEF).

Documents to be given to the child: All children must be issued with the following documents:

  • a copy of the welfare form

  • an IS96 which grants temporary admission to the United Kingdom

  • a SEF noted with a return date of 28 days from the date of the completion of the welfare form

  • an application registration card (ARC). If the child is under 5, the ARC must include the reference ‘CUF’ (child under 5)

  • a standard acknowledgement letter (SAL) if the location is not equipped with ARC issuing equipment

The social worker and legal representative (if one is present), must be provided with a copy of the welfare form.

Non-completion of SEF : When a SEF has not been returned, the asylum interview should not go ahead. Non-completion of the SEF is not on its own sufficient to treat the claim as withdrawn, but the Home office case worker is required  to write to the legal representative in advance of the interview to establish why the SEF has not been completed and ask for confirmation as to when the form will be returned. If the SEF remains unreturned, the  Home Office case worker must discuss the child’s access to legal representation with the social worker to ensure that the legal representatives are acting in the best interests of the child and that the child will have the opportunity to explain the basis of their application.

Where the SEF does not contain sufficient information the Home Office case worker must write to the child via their representative, copied to the social worker and ask them to provide further information within 10 working days.

(11)The substantive asylum interview:

Before making a decision to conduct a substantive asylum interview with a child, Home Office caseworkers are required   to  review all the available information to establish whether it is in the child’s best interests to be interviewed. The physical and mental health considerations of the child must be taken into account when considering whether going ahead with an interview is in the child’s best interests.

In most cases, it will be appropriate for an interview to take place for children over 12 as it is an opportunity for the child’s voice to be heard directly. However, there may be instances where an interview is not necessary or may not be in the child’s best interests. For example, if the child has been through a particularly traumatic experience and adequate documentary information has already been provided it may not be in the child’s best interests to be expected to recount the experience. Any issues which have already been highlighted by either the legal representative or the social worker must be fully considered; if there are such issues, the home office caseworker must explain why the interview is appropriate. If the child is unfit or unable to be interviewed, the home office caseworker must refer to a senior manager to agree the best course of action.

In all cases, contact must be made with social workers and legal representatives to advise them of the position and if necessary to obtain further information prior to making the decision whether to interview. Where a decision is made not to interview, the case must be referred to a senior manager.

Home Office Caseworkers are directed that they must always be open to interviewing a child under 12, especially if the child is mature and those caring for the child advise that the child is keen to be interviewed. A proposal to interview must not be made directly by a caseworker to a child under 12 but through the social worker and legal representative. This ensures that appropriate safeguards are in place such as the presence of a responsible adult. The case along with full reasons for recommending an interview and consideration of safeguarding and best interests must be referred to a senior manager.

Home Office Caseworkers are required to ensure that all available evidence in asylum claims is fully considered, including evidence provided by other family members. Where other family members are also claiming asylum, it will normally be appropriate to link relevant files and consider claims from family members together, even where separate claims have been lodged. This ensures all relevant factors have been considered, including an evaluation of protection needs in the family context as well as consistency in decision making.  Care must be taken where a family member has expressly stated that they do not want information they have provided being shared with other family members.

12)Collecting Information from the child:

In collecting information from children the following general principles must always be taken into account:

  • children do not often provide as much detail as adults in recalling experiences and may often express their fears differently from adults

  • evidence provided by a child must be considered in the light of their age, degree of mental development and maturity currently and at all material times in the past

  • evidence provided by a child must be considered in light of any available knowledge of their personal, family, cultural and educational background

  • Home Office caseworkers must proactively identify, pursue and consider objective factors and information that may be relevant to the child’s asylum claim, for example by making reasonable requests to obtain further information from the child or their representatives and from other agencies involved with the child

  • Home Office caseworkers must take account of any evidence provided, including from other family members, other accompanying adults or social workers

  • Home Office caseworkers must consider any relevant objective country information

  • Home Office caseworkers must take account of factors which may affect consideration of the child’s credibility

All inconsistencies in the child’s subjective evidence or between the subjective and objective evidence must be put sensitively to the child during the interview to allow them an opportunity to explain further.

(13)Welfare of the child during an interview :

Home office caseworkers are required  to  check that the child is not hungry, thirsty or in any other physical discomfort or distress during the course of the interview. Caseworkers should offer regular breaks and recognise that a child may feel inhibited from asking for a break. It is also important to check at intervals throughout the interview that the child feels comfortable and where necessary consult with the responsible adult.

If the child appears upset, Home Office caseworkers must act quickly by stopping the interview and assessing the situation. It may be sufficient for the child to have a break before continuing. However, if the child is unable to continue the interview, arrangements must be made to reschedule it for another date. In these circumstances consultation with the social worker and responsible adult (if different) will usually be appropriate.

In exceptional circumstances where it is not possible to interview a child, Home Office caseworkers must consider visiting the child in the legal representative’s presence to gather the necessary information or contact individuals who have had sustained contact with the child and may be able to elaborate on elements of the child’s claim, for example carers and social services.

If an interview at an alternative location is not possible, case workers must consider making a decision on the information already available. This must only be done in the most exceptional circumstance. The home office case worker must also:

  • write to the legal representative, social worker and guardian or foster carer to explain the situation and to assess whether there is any other way of getting the information needed to make an asylum decision

  • consult country information for relevant information

(14)Role of the legal representative and responsible adult during interviews:

A responsible adult must attend the substantive interview with the child. However, it is not the function of the responsible adult to answer questions on behalf of the child,

but they may intervene if they consider that the child is becoming distressed or tired and a break is required. If necessary, a short break allowing the adult and the child to speak privately must be offered, this may be offered prior to the interview. The break must not add unduly to the overall length of the interview.

At the conclusion of this interview, the interviewing officer will ask the child to confirm that they have understood all the questions and will give the child an opportunity to add any information that they would like to be considered. The responsible adult and legal representative will also have an opportunity to add any comments relating to the conduct of the interview process.

If it is clear to the interviewing officer that the responsible adult is not fulfilling their role and it is in the best interests of the child, they must consider suspending the interview. The interview must be re-scheduled as early as possible.

The child must be asked prior to the interview to confirm whether they are happy with the person acting as their responsible adult.

Home Office Case workers are required to advise the legal representative and the responsible adult that wherever possible, comments should be left until the end of the interview.  The  Home Office consider that constantly interrupting the flow of the interview would not be productive either for the child or the interviewing officer. However, there may be exceptional circumstances when it is appropriate for them to speak up at the time. These will vary, but may include although not be limited to, circumstances where

  • the age or maturity of the child suggests they are not able to properly understand the question and assistance may be necessary

  • the age or maturity of the child suggests they are not able to properly contextualise what is being asked

  • the child is clearly becoming upset by the subject matter and support is appropriate

(15)How the Home Office assess claims from children:

The following is  taken into account by the  Home Office:

  • claims are considered within the framework set out at paragraphs 349 to 352 of the Immigration Rules and any other policy commitments made on children

  • every applicant, regardless of age, has to show to the same standard (a reasonable degree of likelihood) that they have a well-founded fear of persecution for a Convention reason – while taking into account child-specific considerations and other factors that may impact upon the interpretation of these concepts

  • where a child meets the requirements for refugee status, humanitarian protection, Article 8 family or private life or discretionary leave, this must be granted

  • the factors that would affect a child’s demeanour such as age, education, maturity, gender, the standing of the child’s family in the community, their general life experience, trauma experienced and the cultural expectations and attributes of children in their country of origin

  • the credibility of the claim taking into account any additional relevant child specific factors

  • through no fault of their own children may not be able to provide as much detail or evidence about a claim as an adult in similar circumstances

  • where relevant, home office caseworkers must be proactive in pursuit and consideration of objective factors and information relating to the child’s claim

  • Country of Origin Information Reports must be obtained and referred to including child specific sections of this where available

  • where there are clear discrepancies in an account given by a child, home office caseworkers are required to consider the ability of a child to be able to clarify these discrepancies and how far these should be pursued

  • complex cases must be discussed with an appropriately qualified senior caseworker or Technical Specialist

  • full consideration of the child’s asylum claim must take place before consideration of any other forms of leave

Age and maturity- More weight may need to be given to objective indications of risk than to the child’s state of mind or the oral or written evidence they are able to provide. Other factors to consider might include: documentary evidence, objective country evidence, evidence from people with knowledge of the child – including post arrival in the UK. Any specifically prepared child psychological and/or physical heath and development reports or information from welfare and health support professionals to whom the child may have disclosed relevant evidence, (such as trauma, mistreatment or violence) which they may not have felt able to disclose to others must also be considered as part of the overall consideration process.

In young or less mature children a different level of knowledge and information is to be expected and the benefit of the doubt must be applied more liberally if this is applicable.

An asylum claim made by a child must not be refused solely because the child is too young to understand their situation or to have formed a well-founded fear of persecution.

Assessing credibility in children’s claims It is considered not appropriate to draw an adverse credibility inference from omissions in the child’s knowledge or account if it is likely that their age or maturity is a factor or if their own ability to construct an account or other similar reasons lead to those omissions.

In certain circumstances, the benefit of the doubt will need to be applied more generously when dealing with a child, particularly where a child is unable to provide detail on a particular element of their claim.

Home Office Caseworkers must take account of what it is reasonable to expect a child to know in their given set of circumstances and in doing so taking account of their age, maturity, education and other relevant factors.

Caseworkers must demonstrate as part of the decision making process consideration of any mitigating circumstances taken into account during the assessment of credibility in a child’s claim. This will also apply to behaviours that fall within Section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, including:

  • the child’s age and maturity

  • mental or emotional trauma experienced by the child

  • educational level

  • fear or mistrust of authorities

  • feelings of shame

  • painful memories, particularly those of a sexual nature

A case by case approach will be required to be taken by the home office.

Possible Adverse issues:

Withdrawal of asylum claim- If a child fails to attend their personal interview without reasonable explanation, their claim may be treated as implicitly withdrawn under paragraph 333C of the Immigration Rules. Home Office Caseworkers are required however to exercise extreme caution in handling occurrences of non-attendance of personal interviews in the case of children, taking into account their level of maturity and the need to respond accordingly. Every effort must be made to establish why the child failed to attend the interview. This may include providing the opportunity for their legal representative to address this question and any reasons why the claim should not be treated as withdrawn. Children may also explicitly withdraw their claim for asylum.

Non-Compliance – If a child fails to submit information when requested without reasonable explanation or submits the information late, the home office caseworker must make every effort to investigate the reasons before refusing the asylum claim on the grounds of non-compliance or even regarding it as withdrawn.

Article 1F Exclusion – Children can be excluded under Article 1F of the Refugee Convention, however, it is important that caseworkers carefully consider the specific context of each case, for example the child’s age and maturity, when considering how far the individual should be deemed liable for their own actions. Each case must be treated on its own merits. Personal circumstances, such as age or psychological functioning, may be relevant when investigating the level of knowledge a person had of what they were participating in as well as the child’s ability or power to take alternative action.

Certification under section 94 under the 2002 Act Where the child is from a designated state, an asylum or human rights claim from an unaccompanied child can be certified as clearly unfounded. The Home Office does not certify claims in circumstances where no adequate reception arrangements are available in the country of return because the child is unlikely to be able to return to make an in time appeal. Such cases should lead to the grant of unaccompanied asylum seeking  leave and should not be certified under section 94.

(16)Possible outcomes:

Children, as with adults must be granted the status and leave that they are entitled to in accordance with the relevant immigration rules. So if the child meets the requirements of the Refugee Convention, refugee status must be granted.

Refugee status A child who fulfils the Refugee Convention criteria is a refugee and should be granted refugee status under paragraph 334 of the Immigration Rules unless the exclusion criteria apply. Asylum will normally be granted for five years.

Humanitarian Protection When a child does not qualify for refugee status, Home Office caseworkers must next consider whether they qualify for a grant of humanitarian protection. Leave will similarly be granted for five years.

Cases excluded under Article 1F- Some claimants will have been excluded from asylum and humanitarian protection as a result of their previous actions. Where removal from the UK is not possible, shorter periods of leave (restricted leave or discretionary leave) will have been granted and the case kept under review pending appropriate removal action.

Article 8 family and private life Where an article 8 (family or private life only) claim is made out and the individual meets the requirements, leave under Appendix FM (family life) and paragraphs 276ADE(1) to 276DH (private life) of the Immigration Rules , leave will normally be granted if they are not criminal cases.

Appendix FM provides two routes to settlement on the basis of family life as a partner or parent. These are a 5-year route and a 10-year route where:

  • the 5-year route as a partner or parent is for those who meet all of the suitability and eligibility requirements of the Immigration Rules at every stage;

  • the 10-year route as a partner or parent, which is only applicable to in-country applications, is for those who meet all of the suitability requirements, but only certain of the eligibility requirements as a partner or parent where paragraph EX.1. of Appendix FM is also met.

Discretionary Leave Discretionary leave (DL) can be granted to children who meet the requirements of the discretionary Leave policy. DL may be granted to accompanied asylum seeking children who do not meet the requirements for Unaccompanied   Asylum seeking children leave where an accompanied child cannot be returned. In the vast majority of cases, a grant of 30 months is the maximum length of leave that should be granted. However, if the circumstances leading to a grant of DL are particularly exceptional and warrant a grant in excess of standard grant of 30 months, the exceptional grounds must take priority over normal grant times and the longer period must be granted. In very exceptional circumstances, it may be appropriate to grant indefinite leave to remain. It is the responsibility of the claimant – or their legal representative – to provide the evidence to support a departure from the normal period of leave.

Indefinite leave to remain If a child has been refused asylum, there is scope for Home Office caseworkers to consider and grant indefinite leave to  remain  instead of other forms of leave but the claimant must state the exceptional needs or circumstances that warrant such a course of action

Children under 17.5 years of age – If the child does not qualify for refugee status, humanitarian protection, family or private life leave or discretionary leave on any other basis, the Home Office caseworker must consider whether there are safe, adequate and sustainable reception arrangements in the child’s home country. If such arrangements can be made successfully, the application will fall to be refused outright.

Children over 17.5 years of age – Children who are refused outright because they are over 17.5, but are under 18 years of age, will be liable for removal on turning 18. This must be made clear in the reasons for refusal letter and gives the young person up to 6 months to prepare for return back to their country of origin. If, at any point, it becomes apparent the reception arrangements do not meet the standard needed, return must immediately be stopped. If no reception arrangements are available, no return arrangements can be made until the applicant is over 18, although the applicant will  be advised that once they reach 18 they will be expected to return home.

Appeals:

Changes made by the Immigration Act 2014 came into force on 6 April 2015 after which all asylum appeals fall under section 82 of the Nationality, Immigration and Asylum Act 2002. Cases which are granted unaccompanied asylum seeking children leave for less than one year qualify for a right of appeal under section 82.

(17) Some  Relevant Home Office Policy Guidance:

Processing children’s asylum claims, Version 1.0,12 July 2016: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/257386/gender-issue-in-the-asylum.pdf

Gender Issues In The Asylum Claim : https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/257386/gender-issue-in-the-asylum.pdf

Section 55 Guidance: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/431346/Section_55_v12.pdf

Asylum Policy Instruction ,Assessing credibility and refugee status

Version 9.0 , Publication date: 6 January 2015: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/397778/ASSESSING_CREDIBILITY_AND_REFUGEE_STATUS_V9_0.pdf

Asylum Policy Instruction Discretionary Leave, Version 7.0, Published: 18 August 2015: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/460712/Discretionary_Leave_2__v7_0.pdf

Asylum Policy Instruction Asylum Interviews , Version 6.0

Publication Date: 04 March 2015: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/410098/Asylum_Interviews_AI.pdf

Humanitarian Protection: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/257431/huma-prot.pdf

Assessing age: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/257462/assessing-age.pdf

Asylum Policy Instruction , Dependants and former dependantsVersion 2.0, May 2014 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/314042/DependantsAndFormerDependants_External2014-05-22.pdf

2 thoughts on “Parents without Leave : A Reference Point On How to Submit An Asylum Claim for an Accompanied Child in the UK

  1. I don’t recall seeing such a comprehensive and useful resource on claiming asylum for an independent child before – extremely useful but wish a guide like this had been around years ago. This would be a great chapter in a book on children and immigration issues – which should also include dealing with children in detention centres and citizenship!

    Liked by 1 person

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