Safeguarding the Needs of Children and Young ... - Wiley Online Library

Child Abuse Review Vol. 21: 335–348 (2012) Published online in Wiley Online Library (wileyonlinelibrary.com) DOI: 10.1002/car.1202

Safeguarding the Needs of Children and Young People Seeking Asylum in the UK: Addressing Past Failings and Meeting Future Challenges Numerous reviews of UK policy and practice have criticised the provision of support to children and young people seeking asylum. Recent research and policy analysis present a dual failure in the current response: that of the immigration system in recognising and responding to specific needs; and that of statutory services in applying key legislation relating to rights, entitlements and subsequent provision. In combination, this illustrates a system that is at all times in tension between ideas of control and protection of these vulnerable young people, and ultimately therefore fails to safeguard. Recent changes to government policy, the legislative framework and practice guidance governing such provision suggest that such failings may have been recognised but much work remains to be done to implement these changes effectively. Furthermore, these changes are occurring in a period of significant instability in public service provision, resulting from the severe cuts to public funding outlined in the UK Government’s 2010 Comprehensive Spending Review (HM Treasury, 2010). It is therefore timely to review current policy and practice related to children and young people seeking asylum in the UK so as to address past failings and fully realise the stated commitment to ensure a young person’s ‘best interests’ are fully considered in any immigration decision. Copyright © 2012 John Wiley & Sons, Ltd. KEY PRACTITIONER MESSAGES: • Refugee and asylum seeking children’s welfare should be the primary focus of practice rather than immigration policy. • Provision of safe, suitable accommodation, appropriate education, emotional support and leisure activities are key to children’s wellbeing. • Refugee and asylum seeking children in families tend to receive even less services than unaccompanied children. • Practitioners should ensure that where possible they work with the whole family and the wider community to provide appropriate services.

KEY WORDS: asylum-seeker; refugee; safeguard; age disputing; detention

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ver the last decade, inspection reports reviewing arrangements to safeguard children (Commission for Social Care Inspection, 2005;

* Correspondence to: Rachel Hek, Head of Qualifying Practice Learning, School of Social Policy, University of Birmingham, Muirhead Tower, Room 820, 8th Floor, East Wing, Edgbaston, Birmingham B15 2TT, UK. E-mail: [email protected]

Copyright © 2012 John Wiley & Sons, Ltd.

Accepted: 22 August 2011

Rachel Hek* Nathan Hughes Roberto Ozman School of Social Policy, Institute of Applied Social Studies, University of Birmingham, UK

‘A system that is at all times in tension between ideas of control and protection’

‘Refugee and asylum seeking children’s welfare should be the primary focus of practice rather than immigration policy’

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‘Key legislation that heightens the requirement to act in the ‘best interests’ of the child or young person’

‘The complex interplay between policy governing the immigration system and that governing child welfare’

‘Criticism of this position was widespread’


Hek et al. Department of Health, 2002; Office for Standards in Education (Ofsted), 2008) have repeatedly argued that the provision of services for children and young people seeking asylum in the UK is inconsistent. Whilst the 2008 Safeguarding Children report (Ofsted, 2008, p. 7) found there to be ‘greater recognition of the support and safeguarding needs of asylum-seeking children’, it also suggested many areas of practice that increased vulnerability and risk. Subsequent to these reviews, there have been significant changes to the legislative framework and practice guidance governing provision to children and young people seeking asylum in the UK. These include: the introduction of key legislation that heightens the requirement to act in the ‘best interests’ of the child or young person; changes to core government policy following the election of the new Coalition Government in May 2010; and extensive guidance to immigration services and local authorities. Given their recency, evidence of the impact of these changes remains tentative. Furthermore, these changes are occurring in a period of significant instability in public service provision, resulting from the severe cuts to public funding outlined in the UK Government’s 2010 Comprehensive Spending Review (HM Treasury, 2010). Given this complex and evolving context, it is timely to review current policy and practice related to children and young people seeking asylum in the UK. By considering existing research evidence regarding the treatment of and outcomes for these children and young people, we reflect on the difficulties and challenges faced within the assessment and decision-making processes of the immigration system, and in relation to rights, entitlements and subsequent provision within statutory services. Overall, this evidence suggests a system that is at all times in tension between ideas of control and protection of these vulnerable children and young people. The discussion that follows is necessarily restricted to policy and practice in the UK. It seeks to explore the complex interplay between policy governing the immigration system and that governing child welfare. International comparison would require significant and detailed analysis of various complex contexts in a way that is not within the realms of this single paper. Children and Young People within the Immigration System Established international standards in relation to children’s rights explicitly address the needs of children and young people seeking asylum. Such standards prioritise the needs of children above those of national immigration controls and requirements. Most notably, article 3 of the United Nations Convention on the Rights of the Child (UNCRC) places a requirement on nation states that ‘in all actions concerning children. . . the best interests of the child shall be a primary consideration’. Until November 2008, the UK Government had, however, entered a reservation to the UNCRC, permitting derogation from its principles in relation to those without the right to enter or remain in the UK. Criticism of this position was widespread. For example, the Independent Asylum Commission’s (IAC) (2008, p. 36) national review of the UK asylum system argued that the reservation brought ‘a lower level of protection for children seeking asylum’, whilst a report for Save the Children (2005, p. 3) argued that this reservation had been so ‘widely interpreted in policy and practice’ as to effectively exclude any Child Abuse Review Vol. 21: 335–348 (2012) DOI: 10.1002/car.1202

Safeguarding the Needs of Children and Young People Seeking Asylum ‘children subject to immigration control from all of the provisions of the UNCRC.’ Following persistent lobbying and a defeat in a key vote in the House of Lords, the UK Government removed its reservation to article 22 of the UNCRC. As a result, the UK Border Agency (UKBA) (the government agency responsible for border security and migration control in the UK) has now become subject to statutory safeguarding duties under section 55 of the Borders, Citizenship and Immigration Act 2009 (see Department for Children, Schools and Families (DCSF), 2009). This provides guidance that mirrors section 11 of the Children Act 2004, requiring all statutory functions ‘to be carried out in a way that takes into account the need to safeguard and promote the welfare of children’ (DCSF, 2009, p. 14). Whilst this introduces key principles to the immigration system (DCSF, 2009), it falls short of embracing the core principle enshrined in the Children Act 1989 in that the ‘best interests’ of the child are not to be considered paramount or ‘the single overriding factor’, but rather as ‘a primary consideration’ (Firth, 2010). This is argued to provide ‘a margin of discretion for the state parties’ that can lead to ‘competing and inconsistent concepts’ as to what constitutes ‘best interests’ (Firth, 2010). However, there must be a note of caution injected about the implementation and effectiveness of section 55 safeguarding duties. The Immigration Law Practitioners Association (ILPA) (2010) highlights a number of recent High Court cases in which children have been dealt with in ways that do not safeguard or protect their rights. There are examples of children being handcuffed and physically injured (R (M) v SSHD (2010) EWHC 435 (Admin), February 2010), parents being detained and separated from their children with no regard given to the effects of this on the children (R (MXL and Ors) v SSHD (2010) EWHC 2397 (Admin), September 2010), children being deported to third countries with no regard to the need to safeguard or promote welfare (R (TS) v SSHD (2010) EWHC 2614 (Admin), October 2010) and families being detained where it is clear that section 55 has not been complied with (R (Suppiah and Ors) v SSHD (2010) EWHC 11 (Admin), January 2011). Furthermore, there has been a recent change regarding the way children’s best interests and immigration legislation are considered. On 1 February 2011, the Supreme Court issued its judgment in ZH (Tanzania) v SSHD (2011) (UKSC04, 2011), a case of a mother of nine- and 12-year-old British citizen children. The family’s appeal was unanimously allowed on the grounds that the best interests of the child must be a primary consideration and given more weight than immigration control. In reaching this decision, consideration was given to whether it was reasonable in terms of the wellbeing of the children to send them to live in another country, and the views of the children were sought in relation to this. This case therefore shifts the emphasis from making judgments based on immigration legislation towards consideration of the best interests of the child, and also signifies that children cannot be held responsible for their parents’ previous immigration histories. Furthermore, it clarifies that immigration legislation has to be interpreted alongside other general principles of international law, such as the UNCRC, and that there is significance in children’s British citizenship and the rights this affords them. This will necessarily mean that UKBA policy, guidance and training have to be updated. Copyright © 2012 John Wiley & Sons, Ltd.

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‘The UK Border Agency has now become subject to statutory safeguarding duties it falls short of embracing the core principle enshrined in the Children Act 1989’

‘There are examples of children being handcuffed and physically injured’

‘A recent change regarding the way children’s best interests and immigration legislation are considered’ ‘Children cannot be held responsible for their parents’ previous immigration histories’

Child Abuse Review Vol. 21: 335–348 (2012) DOI: 10.1002/car.1202

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‘Such developments demonstrate the commitment of the UKBA to introduce a distinct asylum process for children’

Hek et al. The United Nations High Commissioner for Refugees (UNHCR) (2009) accepts that such developments demonstrate the commitment of the UKBA to introduce a distinct asylum process for children, welcoming, for example, the longer timescale for decision making and attendance of a ‘responsible adult’ at the substantive interview. However, UNHCR’s most recent audit of UK practice has been specifically concerned with the extent to which this distinct process has regard to the special circumstances of young people seeking asylum. Their findings highlight a lack of clear guidance with regards to ensuring that actual timescales are appropriate to the specifics of each child’s circumstances (UNHCR, 2009). For example, excessively quick decision making was observed in cases where it was perceived that a delay in order to gather additional evidence could lead to a better quality decision. In contrast, excessive delays were observed where it was considered to be in a child’s best interest to expedite the claim as quickly as possible due to a particular vulnerability. Furthermore, the audit observed many instances where it was felt that further evidence, such as country of origin information, medical evidence or statements from family members, should have been sought so as to support decision making. The audit of the UNHCR (2009) also raised concerns regarding the use of detention, guidance on dealing with the disputing of the age of young asylum seekers, and risks of trafficking and sexual exploitation. In the following sections, we explore these areas of concern.

Detention

‘Detention has been a feature of UK immigration policy since 1971’

‘Detention is harmful and damaging to children and should be used only as a last resort’ Copyright © 2012 John Wiley & Sons, Ltd.

Detention has been a feature of UK immigration policy since 1971 (Cemlyn and Briskman, 2003). Counter to the UNCRC, young asylum-seekers and their families can be detained at any time from their arrival to being removed from their accommodation, with no warning (Refugee Council, 2005a). The detention of children tends to occur following an unsuccessful claim (Firth, 2010), with around 1000 families detained prior to enforced removal per year (Royal College of General Practitioners et al., 2009). Research investigating the impact of detention on young people suggests that the dangers to wellbeing are numerous, including: a lack of, or broken access to, mainstream education (Mynott and Humphries, 2003; Rutter, 2003); insufficient health care, including a failure to immunise or protect against malaria (Royal College of General Practitioners et al., 2009); and poorly treated mental health difficulties, including emotional and psychological regression, post-traumatic stress disorder, clinical depression and suicidal behaviour (Lorek et al., 2009; Robjant et al., 2009). Those working with young refugees have for many years called for the UK Government to cease the practice of detention of minors. For example, the Children’s Commissioner for England (2009, p. 4) stated that ‘detention is harmful and damaging to children and should be used only as a last resort’. Drawing on first-hand accounts of young people who have experienced detention, the report highlights the harm and fear experienced. In response, Donna Covey, Chief Executive of the Refugee Council, labelled the detention of asylum-seeking children as ‘one of the UK’s most shameful practices’ (Refugee Council, 2009). Child Abuse Review Vol. 21: 335–348 (2012) DOI: 10.1002/car.1202

Safeguarding the Needs of Children and Young People Seeking Asylum In May 2010, the Coalition Government announced its intention to end the practice of detaining children for immigration purposes (ILPA, 2010). Instead, the UKBA intends to ‘set removal directions while the family is in the community, affording families time to submit representations to the process, apply for judicial review, and make plans for their return’ (Hansard HC col 213WH (17 June 2010) cited in Refugee Council, 2010, p. 5).

The Refugee Children’s Consortium (2010) and the Refugee Council (2010) have welcomed these proposals, though call for wider reforms to the removal process so as to further protect the welfare needs of children within families at risk of removal. However, media reports in February 2011 warn that changes to detention policy and practice may not be as significant as promised. The Government ‘is accused of watering down its promise to end the detention of child asylum-seekers’, having announced the introduction of new ‘pre-departure accommodation facilities’ that will see families ‘kept in ‘secure’ units behind high fences for up to a week’ (Brown, 2011). This has led campaigners, such as the Children’s Legal Centre, to present intended reforms as merely ‘detention by another name’ (Brown, 2011). Concerns about the possible impact of such accommodation on children and young people therefore remain.

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‘The UKBA intends to “set removal directions while the family is in the community”’

‘Families ‘kept in ‘secure’ units behind high fences for up to a week”

A ‘Culture’ of Age Disputing? An unaccompanied asylum-seeking child is officially defined as a young person who is (or, in the absence of documentary proof, appears to be) under the age of 18, applying for asylum in his or her own right, and ‘is separated from both parents and not being cared for by an adult who by law or custom has responsibility to do so’ (Home Office, 2007, p. 6). Defining a child or young person seeking asylum to be ‘unaccompanied’ has a major impact on his/her subsequent experiences of the immigration system. Whilst detention primarily affects children in families, being assessed as 18 or over means a young person may be detained. As such, the regular disputation of age means that unaccompanied children may be detained as adults and therefore be subject to the risks discussed above (Refugee Council, 2010). The young person will be treated as an adult within the immigration system, and therefore not be entitled to education, child protection or the application of the principle of best interests (ILPA, 2006). Furthermore, age assessment influences eventual refugee status. In 2008, the percentage of unaccompanied children refused asylum rose from 23 per cent to 85 per cent, when comparing those accepted as being under 18 to those assessed as 18 or over (Home Office, 2008). Despite its importance, accurately assessing age is often problematic. Many children arrive in the UK unsure of their age and with no documentation (ILPA, 2006). If they do have documents these are often dismissed as fakes (Greater London Authority Policy Support Unit, 2004). At present, medical tests of age include bone age, dental age, and puberty and anthropometric measures. However, health professionals suggest such testing to frequently be inexact, with a margin of error of as much as five years either side (British Medical Association, 1997; Fahamu Refugee Legal Aid, 2010; Levenson and Sharma, 1999), while those campaigning for refugee rights argue that such tests are punitive and discriminatory Copyright © 2012 John Wiley & Sons, Ltd.

‘The regular disputation of age means that unaccompanied children may be detained as adults’

‘Those campaigning for refugee rights argue that such tests are punitive and discriminatory’ Child Abuse Review Vol. 21: 335–348 (2012) DOI: 10.1002/car.1202

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‘Adult asylum-seekers are entitled to much lower levels of care than children’

‘The development of case law that has provided guidance’

‘The UNHCR reported ‘mixed practice in the tone and style of questioning”


Hek et al. (Crawley, 2007; Refugee Council, 2003; Rutter, 2003; Save the Children, 2002). Separated children may also adopt an older persona due to their challenging experiences in their country of origin and their long and difficult journeys to the UK (Fahamu Refugee Legal Aid, 2010), or having taken on ‘adult’ responsibilities at an early age (ILPA, 2006). In addition to flawed testing procedures, the IAC (2008, p. 37) describes a ‘culture of disbelief and related practice of age-disputing unaccompanied children who seek asylum’. Similarly, the review of the ILPA (2006, p. 16) reflects an ‘increasing concern’ amongst professionals working with asylum ‘that 15, 16 and 17 year old children. . . are treated as adults despite the fact that their appearance does not ‘strongly suggest’ that they are over 18’. This is supported by Crawley (2007) who found that 45 per cent of those who present as unaccompanied children have their age challenged each year, arguing that some managers pressurise workers to assess unaccompanied minors as older than they are to save money as adult asylum-seekers are entitled to much lower levels of care than children. The requirement to safeguard and promote the welfare of children outlined in the Border, Citizen and Immigration Act 2009 offers redress to these concerns. This Act informed the UKBA guidance on disputed age cases, which states that all such cases should be processed as if children, unless the claimant’s physical appearance ‘very strongly suggests that they are significantly over 18 years of age’ (UKBA, 2009, para 2.2; Fahamu Refugee Legal Aid 2010, p. 6). This does not imply final acceptance of childhood, however, and age is regularly subsequently challenged (Fahamu Refugee Legal Aid, 2010). There is no statutory procedure enforced upon local authorities as to how to conduct an assessment of the age of a person claiming to be under 18, and instead it is the development of case law that has provided guidance. A key piece of such case law was the ruling of R (on the application of B) v. London Borough of Merton, [2003] in which the judge provides broad guidance to conducting age assessments in respect of separated children who arrive in the UK without any documentary evidence to prove their age. The judge confirmed that ‘the social services department of a local authority cannot simply adopt a decision made by the Home Office’ (para 39). Instead, the local authority has a responsibility to ‘elicit the general background of the applicant, including his family circumstances and history, his educational background, and his activities during the previous few years’ (para 37), using an interpreter to minimise misunderstanding. Any doubt as to the credibility of the young person’s information needs to be substantiated and tested (para 37). The extent to which such practice will be universally and effectively employed is however challenged by concerns that not all immigration officers at the UKBA are interpreting and applying the Refugee Convention in an appropriate and child-specific manner. The UNHCR (2009, p. 5) reported ‘mixed practice in the tone and style of questioning’, particularly in seeking a child’s view on evidence that contradicted his/ her account of his/ her age. There have, however, been recent changes in the available means to challenge such assessments. Prior to November 2009, the decision of a local authority regarding age assessment could only be challenged by judicial review on the basis of existing case law (Fahamu Refugee Legal Aid, 2010). The judgments in the cases of R (A) v. London Borough of Croydon (Respondents) Child Abuse Review Vol. 21: 335–348 (2012) DOI: 10.1002/car.1202

Safeguarding the Needs of Children and Young People Seeking Asylum and R (M) v. London Borough of Lambeth (2009) changed this such that, where there is a dispute between the young person and the local authority following an assessment, the High Court is to ‘determine, as a matter of judicial fact, whether the person is a child and how old he or she is’ (Fahamu Refugee Legal Aid, 2010, p. 10). Unsupported Care, Child Trafficking and Sexual Exploitation A further major concern regarding insufficient safeguarding relates to the potential for trafficking and exploitation of unaccompanied asylum-seeking children. As previously noted, a young asylum-seeker is said to be accompanied if ‘cared for by an adult who by law or custom has responsibility to do so’ (Home Office, 2007, p. 6). However, it appears that ‘custom’ is an elastic term, as a child is not considered to be unaccompanied ‘if he or she is being cared for by an adult prepared to take responsibility for them’ (Home Office/ Immigration and Nationality Directorate, 2002). Where a child or young person is accompanied by someone other than a parent, this is a private fostering arrangement, and as such should be monitored by social services; however, research suggests that in practice this monitoring rarely happens. Private fostering arrangements are still difficult to identify and, although the Children Act 2004 tightened the law in regard of private fostering and set up a system of registration and regulation, local authorities have not always acted on this (Ofsted, 2008). Of further major concern is the potential manipulation of this lack of assessment and monitoring of caring arrangements. Despite the protection of the Children Act 2004, the Refugee Council (2004, p.5) argued that current procedures did not protect ‘some of the children in greatest need; children brought into the country by an adult who does not intend to care for them but rather has plans to exploit them.’ Human trafficking for sexual or other exploitation is one of the fastest-growing areas of international criminal activity (Bump and Duncan, 2003). The ILPA (2006, p. 47) described trafficking as ‘the movement of people for exploitation through the use of violence, coercion and/or deception’. This is typically for one of three reasons: domestic service, prostitution and claiming benefits (Somerset, 2004). The UK also includes in its definition of child trafficking the ‘exploitation of children for criminal activity including begging, theft and drug cultivation’ (End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes, 2010, p. 5). Identifying trafficked children is a major problem due to their reluctance to talk to anyone in authority about what has happened to them. Children may not report their experiences due to trauma, fear that traffickers will hurt them or their families, anxiety about how their families and communities will view them if they find out they have been working as prostitutes or have been sexually abused, or fear that they will prosecuted or deported by the UK authorities (ILPA, 2006). Unaccompanied children appear to be particularly vulnerable to such maltreatment due to their isolation (Lay et al., 2007; Papadopoulos and Gebrehiwot, 2002; Thomas et al., 2004). Many appear reluctant to report such abuse as they were concerned about their legal status or had a lack of knowledge of the language and culture in this country. Research over a number of years has been critical of support provided. Somerset (2004) found that there was little awareness or cooperation amongst Copyright © 2012 John Wiley & Sons, Ltd.

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‘The High Court is to ‘determine, as a matter of judicial fact, whether the person is a child and how old he or she is’’

‘Private fostering arrangements are still difficult to identify’

‘One of the fastestgrowing areas of international criminal activity’

‘Unaccompanied children appear to be particularly vulnerable to such maltreatment due to their isolation’ Child Abuse Review Vol. 21: 335–348 (2012) DOI: 10.1002/car.1202

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‘There appears to remain little support for young people who have been trafficked’

Hek et al. professionals dealing with children who had been trafficked, sexually exploited or abused, and that there were inadequate services to deal with these children’s needs when they were identified. The report recommends national guidance, specialist training and adequate resources, including safe secure accommodation for these children. The ILPA (2006) similarly points out that without such measures in place children will remain at risk even whilst looked after by children’s services departments. Despite the Children Acts 1989 and 2004 and the UKBA’s new duties and guidance issued under section 55 of the Borders, Citizenship and Immigration Act 2009, there appears to remain little support for young people who have been trafficked, with no evidence of a specialist or coordinated approach from relevant agencies to the accommodation, care or protection of these children. While the UNHCR (2009, p. 4) recognises the ‘significant steps’ taken by the UKBA to identify potential trafficking concerns and provide appropriate support (which include closer liaison with local authorities to develop good practice and training to all UKBA and local authority staff regarding the identification of potential victims of trafficking), it was critical of practice whereby such issues were not considered in decisions regarding asylum claims.

Meeting the Welfare Needs of Asylum-seeking Children

‘Young people seeking asylum are not counted in official poverty statistics and continue to be denied basic levels of protection’

‘Only children under 18 need to be supported, with children separated from their families ‘if necessary” Copyright © 2012 John Wiley & Sons, Ltd.

The discussion above presents an asylum process that, notwithstanding recent legislation that reinforces the need to safeguard, fails to place the needs of the child as paramount in any decisions made. This disparity between the status of the young person as a child and their status as an asylum claimant is consistently reinforced by policy and legislation designed to address welfare needs. Despite successive UK governments promising to eradicate child poverty by 2020 and to create an inclusive society for all children in the UK, young people seeking asylum are not counted in official poverty statistics and continue to be denied basic levels of protection (Refugee and Migrant Justice, 2009), while immigration legislation prevents parents or carers working, forcing families to live on subsistence markedly lower than basic benefit rates (Penrose, 2002). Since the early 1990s, successive Acts of Parliament have been increasingly punitive toward refugees and asylum seekers, eroding rights and access to support. Of particular relevance is the ‘dispersal policy’, introduced within the Immigration and Asylum Act 1999, which effectively places asylum-seeking families in designated areas, often in inadequate or emergency accommodation. In addition, benefits are often paid in the form of vouchers, to be exchanged for food and goods in specific, nominated shops. Such policies have marginalised and differentiated asylum-seeking children, young people and families, often leading to racism (Sales and Hek, 2004). Beirens et al. (2006) discuss difficulties of integration, specifically in relation to language barriers, problems in accessing school places, differing expectations of school and health services, and tensions within local communities, all exacerbated by dispersal. The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 withdrew basic support for ‘failed’ asylum-seeking families, making them destitute. The most controversial provision of the Act is section 9 which states that only children under 18 need to be supported, with children separated from their families ‘if necessary’. Cunningham and Cunningham (2007, p. 282) argue that forcing families to choose between destitution, separation from their Child Abuse Review Vol. 21: 335–348 (2012) DOI: 10.1002/car.1202

Safeguarding the Needs of Children and Young People Seeking Asylum children, or return to possible torture and death in their country of origin is ‘no choice at all’, leading families to disappear. This causes further potential dangers for children, as families may be pushed towards criminality in order to make enough money to meet their basic needs. The impact of the use of section 9 on young people was highlighted by a study carried out by the Children’s Society (Clarke and Nandy, 2008). Whilst small scale, it documents the experiences of children and young people in circumstances where funding was withdrawn, including a lack of food or heating, parental illegal employment and prostitution, and a lack of access to core services. Whilst, following successful political campaigning, section 9 is no longer being enforced, it remains on the statute book and therefore could potentially be re-introduced. For example, the new pre-departure secure accommodation scheme would remove any support payments from families who refused to move to secure accommodation, whilst families moving to these units will have payments withdrawn and just receive meals (Brown, 2011). Numerous other studies have demonstrated the severe impact of recent policies by documenting the first-hand experiences of refugee and asylum-seeking children in accessing services and support. Hek (2005) reviews literature exploring needs relating to poor or inappropriate housing, unmet health needs, emotional distress, trauma and loss. The particular impact on educational support is well documented. Refugee children have continuously been denied consistent access to education in the UK (Dennis, 2002), with policies of dispersal and detention making this even more difficult (Dunkerley et al., 2006). Rutter (2003, p. 9) highlights the impact of fragmented access to education caused by high mobility, homelessness and poverty, and argues for stability in schooling as key to providing both ‘therapeutic and normalizing benefits’. The poverty experienced by asylum-seeking families also impacts greatly on children’s health. Clarke and Nandy (2008) routinely found children living in squalid and substandard accommodation, with little to eat and poor nutrition. These findings are mirrored by recent reviews of social care provision. For example, the ILPA (2006, p. 14) suggests ‘confusion and misunderstanding within the social care profession’ as to whether the provisions of the Children Acts 1989 and 2004 apply to children and young people subject to immigration control. This was echoed by Refugee and Migrant Justice (2009) who argued that this lack of training and awareness of the needs of young asylum seekers leads to unfair decisions and lack of representation for children. Such analysis leads the ILPA (2006, p. 64) to conclude that ‘despite Government reassurances that every child matters’, children within the immigration system are ‘systematically excluded’ from key interventions and practices deigned to ensure positive outcomes for young people. Recent legislation designed to protect children and young people also appears to be undermined and diluted by the immigration processes relating to unaccompanied children. As looked after children, unaccompanied children aged 16 or 17 are covered by the Children Acts 1989 and 2004, and the Children (Leaving Care) Act 2000. Despite this right to and need for services, a number of studies have consistently illustrated that many unaccompanied children do not receive the same standard of care given to other looked after children, and are often not assessed under the same criteria (Audit Commission, 2000; Dennis, 2002; Kidane, 2001; Mitchell, 2007; Ritchie, 2003; Stanley 2001). Copyright © 2012 John Wiley & Sons, Ltd.

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‘Pushed towards criminality in order to make enough money to meet their basic needs’

‘Refugee children have continuously been denied consistent access to education in the UK’

‘Recent legislation designed to protect children and young people also appears to be undermined and diluted’


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‘The level of support that unaccompanied children of 16 years and over receive appears to be very inconsistent’

Hek et al. The ‘Hillingdon Judgment’ challenged this lack of ongoing support for 16and 17-year olds (Children’s Legal Centre, 2003). Four young people protested their right to receive ongoing support and services after the age of 18-years old as children who had been looked after under the Children Leaving Care Act 2000. The judgment found that unaccompanied children were entitled to the full range of support through leaving care services and would not be dispersed if their asylum claim had not been decided by their 18th birthday. Whilst subsequent research has found some evidence that policy and practice have changed as a result of the judgment, the level of support that unaccompanied children of 16 years and over receive appears to be very inconsistent, with some local authorities still not providing the support and services to which this age group is entitled (Broad and Robbins, 2005; ILPA, 2006; Refugee Council, 2005b). Legislation designed to protect children in care appears to be inconsistently applied to unaccompanied children. Care Matters (Department for Education and Skills (DfES), 2006) sets out the responsibilities of local authorities in relation to corporate parenting and is designed to tackle some of these issues. However, the Refugee Council (2007, p. 16) have criticised the underpinning idea in Care Matters that unaccompanied children ‘often have different needs to other children in care’, arguing that this implied that their needs were too complex to be met by the care system, with the Government seen to be abdicating responsibility for this group of children. Despite these criticisms, Care Matters (DfES, 2006) did at least mention the needs of unaccompanied children. It highlighted positive suggestions for change, such as broader dissemination of research and good practice, recruiting more minority ethnic carers, training carers in skills that may be particularly useful when caring for unaccompanied children and allowing UKBA staff to access a proposed new national training framework.

Conclusion

‘A dual failure in responding to the needs of children and young people seeking asylum’

‘There remains a need for significant improvement to services in order to make a difference’ Copyright © 2012 John Wiley & Sons, Ltd.

This article has described a dual failure in responding to the needs of children and young people seeking asylum: the failure of the immigration system in recognising and responding to the specific rights and needs of children and young people; and the failure of statutory services to apply key legislation in providing welfare support. The Children Acts 1989 and 2004 seek to ensure that all children are safe and provided with services that meet their needs. However, a wealth of research and policy analysis details how key principles regarding the necessarily differential treatment of children are not applied to those seeking asylum. Whilst policy relating to children in the UK is underpinned by notions of support and inclusion, immigration legislation consistently overrides this, excluding young refugees from access to services. Recent changes suggest these failures have been recognised and responded to, with legislation and policy providing a framework for significant change in a number of the areas of practice critiqued in this article, including a legal requirement on key services and professionals to safeguard young people seeking asylum. However, it must be recognised that there remains a need for significant improvement to services in order to make a difference to the lives of young refugees in the UK. Much of the analysis presented here calls for changes to the ethos or philosophy underpinning the way young asylum seekers are dealt Child Abuse Review Vol. 21: 335–348 (2012) DOI: 10.1002/car.1202

Safeguarding the Needs of Children and Young People Seeking Asylum with. These include: the full realisation of the commitment to ensure a young person’s ‘best interests’ are fully considered in all decisions regarding their welfare; stability and responsivity in education, health and social care support; and the full and complete implementation of promises to end child detention. In essence, this is not about new legislation as much as the implementation or enforcement of existing government commitments to safeguard and promote the welfare of children subject to immigration control. As Crawley (2007, p. 5) argues, there is a need ‘to realign immigration and child care systems and to ensure that care systems acquire an immigration focus’. It is this principle that must be placed at the centre of decision making regarding support to safeguard children and young people seeking asylum. Case List

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‘To realign immigration and child care systems and to ensure that care systems acquire an immigration focus’

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