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6.3 Leaving Care Support for Unaccompanied Asylum Seekers


Contents

  1. Eligibility for Leaving Care Support
  2. Summary of the Court of Appeal Judgment in SO v LB Barking and Dagenham
  3. Human Rights Assessments
  4. Guidance Notes for Completion of Application form for UK Visas and Immigration Support


1. Eligibility for Leaving Care Support

When they reach 18 years, the majority of Unaccompanied Asylum Seeking Children (UASC) have been Looked After children, under Section 20 Children Act 1989 and would therefore be entitled to leaving care services up to at least the age of 21 as Former Relevant Children. However eligibility for support from a local authority post-18 is also determined by the young person's immigration status as the leaving care provisions of the Children Act 1989 fall within Schedule 3 of the Nationality, Immigration and Asylum Act 2002.

Young people who arrive within 13 weeks of their 18th birthday will not qualify for full leaving care services even if they have been provided with support under s.20 Children Act 1989 for the weeks leading up to their 18th birthday, as they will not have been 'looked after' for 13 weeks or more. They are known as Qualifying Children and although they are not entitled to the main leaving care entitlements they are entitled to advice, assistance and befriending under s.24 Children Act 1989. 

There has been confusion around whether young people aged 18 plus who do not receive, or no longer have, Leave to Remain (often referred to as 'end of line' or 'appeal rights exhausted') are entitled to local authority support. These young people have been refused asylum or any other form of temporary protection, or their Leave to Remain has expired (and an application to extend it refused), and they have exhausted all appeals. Often, however, they have not been removed and remain in the UK because, for example, the Home Office is not able to obtain travel documents which give the young person permission to return to their country of origin.

The law on the withdrawal or withholding of local authority support to young people aged 18 plus is included in Schedule 3 of the Nationality, Immigration and Asylum Act 2002, which prevents certain categories of migrants from accessing 'Leaving Care' and other types of support. Paragraph 6 of Schedule 3 provides that young people who are considered to be 'failed asylum-seekers' are entitled to continue to receive Leaving Care services from a local authority up to the point where they 'fail to comply with removal directions' set by the Immigration Service (a removal direction details the time and place of removal from the UK). In other words, being a failed asylum-seeker is not sufficient cause on its own to withdraw or withhold local authority support. However, even if the young person has failed to comply with a removal direction they may still be entitled to receive local authority support if not to provide it would fundamentally breach their rights under the European Convention on Human Rights (ECHR) or under the European Community Treaties.

Some 'end of line' young people, rather than being defined as 'failed asylum-seekers' will fall into another category detailed in Paragraph 7 of Schedule 3 of the Nationality, Immigration and Asylum Act 2002, that of 'persons unlawfully in the UK'. If a young person is found to be a person 'unlawfully in the UK' then they can have their leaving care support withdrawn before they fail to comply with a removal direction that is, as soon as they become 'unlawfully in the UK'. The duties of the Local Authority to provide Leaving Care services for these young people will be limited, and subject to a human rights assessment.

It can be complex to determine who is and who is not 'unlawfully in the UK' and therefore ineligibility for leaving care support can also be complex to determine. Subject to a minor exception (those young people who applied for asylum at the port of entry and at no time received a grant of leave to enter the UK) former UASC aged 18 or over, who have exhausted their rights of appeal, and have no further lawful basis of staying in the UK, will become 'unlawfully in the UK'. 


2. Summary of the Court of Appeal Judgment in SO v LB Barking and Dagenham

The appellant in this case, SO, was an Eritrean national who had been accommodated by the respondent local authority as a Looked After child under Section 20 Children Act 1989. SO's asylum case was refused by UK Visas and Immigration and Barking subsequently decided to cease providing accommodation to SO on the basis that he was entitled to support under Section 4 of the Immigration and Asylum Act 1999. It was assumed for the purposes of the case that SO was not in employment, education or training.

SO challenged Barking's decision, arguing that it had failed to consider whether he was entitled to provision of accommodation under Section 23C(4)(c) Children Act 1989A - which is provision of 'other assistance' to a Former Relevant child, to the extent that his welfare requires; and that the local authority was not able to rely on provision of accommodation by UK Visas and Immigration under S.4 in deciding whether it could provide accommodation to him.

The Court of Appeal's judgment clarified that Section 23C(4)(c) Children Act 1989 gives local authorities the power to provide accommodation to Former Relevant children as their welfare requires, even if they are not in employment or receiving education or training (as per s.23C(4)(c) and (b) Children Act 1989). It also clarifies that UK Visas and Immigration powers to accommodate under Section 4 and Section 95 Immigration and Asylum Act 1999 are residual and cannot be exercised where there is eligibility for local authority accommodation under Section 23C(4) Children Act 1989.

Section 23 Children Act 1989 is listed as an excluded provision under Schedule 3 NIAA 2002. Where a person falls into one of the four 'excluded groups' in Schedule 3 a local authority must only provide such support and assistance if it is necessary to prevent a breach of the person's human rights. A Human Rights assessment would include a determination of whether the person could return to their country of origin to avoid a breach of human rights occurring. Support and assistance under S23C(4)(c) Children Act 1989 could only be provided if it is necessary to prevent a breach of human rights.

For Former Relevant children who do not fall into one of the excluded groups outlined in Schedule 3 NIAA (for example, where their asylum cases are still pending or where they are all appeal rights-exhausted but originally applied for asylum at port-of-entry) a local authority will be expected to exercise its powers to accommodate or assist with accommodation under S23C(4) Children Act 1989 until the age of 21 and if in full-time education, until the age of 24. In such cases, the Judge made clear that UK Visas and Immigration support is residual and cannot be relied upon in determining whether the person's welfare requires provision of accommodation under S23C(4) Children Act 1989. In other words, a Local Authority is not entitled when considering whether a Former Relevant child's welfare requires that he be Accommodated by it, to take into account the possibility of support from UK Visas and Immigration. Young people from overseas who are Former Relevant children should therefore not be referred to UK Visas and Immigration for accommodation support.


3. Human Rights Assessments

There is very little guidance on how a local authority should conduct a Human Rights Assessment, but in doing so it would need to consider whether there would be a breach of:

  • Article 3 of the ECHR (i.e. if support were refused or withdrawn would the young person be subject to treatment amounting to torture or to inhuman or degrading treatment or punishment? It has been found that destitution can amount to inhuman or degrading treatment when the person 'faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life);
  • Article 8 of the ECHR (i.e. if the young person returned to their country of origin, would the right to respect for private and family life be compromised?).

A 'positive' human rights assessment does not currently make the young person eligible to attract funding under the terms of the UK Visas and Immigration Leaving Care Grant.


4. Guidance Notes for Completion of Application form for UK Visas and Immigration Support

See also Protocol for Transfer of Unaccompanied Asylum Seekers between Children's Social Care and the Community and Housing Directorate

  • Book in an appointment two months before the young person's 18th birthday and an interpreter if this is deemed necessary to complete the application form;
  • At the interview take a few minutes to advise of the following:
    • It may take a couple of hours to complete;
    • There are several sections to the form;
    • Outline that each section will be introduced;
    • You will make no assumptions - you will need to ask questions that require the applicant to provide an answer.
  • As the interview proceeds you may come across sections which require documentary evidence, and copies of these items will be needed. The applicant will need to provide evidence ASAP if they do not carry it with them;
  • Passport photographs will be needed (4) but we have arranged with the Customer Services Centre to do this for us. If there is a problem with this either go to a photo booth or contact NERS to see if you can use their facilities;
  • The form will direct you through its completion and the notes will assist in the process. This will take up most time.

The Form

Section One Straightforward
Section Two Complete what parts you can
Section Three

'Both'

'Yes' then 'No' then do not complete any of the two remaining boxes but rather, state - 'supported by Children's Social Care -client turning 18 years'
Section Four Ok
Section 5a 'No'
Section 6a 'No', 'No', 'Does not apply', 'Yes' - with details, 'No', 'No' them complete the bottom box with this suggestion - 'Supported by Children's Social Care as UASC - Turning 18 years of age and need to transfer to UK Visas and Immigration Support - in Newcastle please.' Then leave last Q empty.
Section 6b Leave the 2 Q's alone and repeat info in the box from Sect 6a
Section 7a No' and 'No'
Section 7b Leave empty
Section 8 To be completed as told by the applicant
Section 9 To be completed as told by the applicant
Section 10 Unless told to the contrary leave blank
Section 11 Complete as told by the applicant
Section 12 As told by the applicant. Photo's - please refer to the guidance notes for signing them. Also please see the mail sent previously with the procedure for accessing the photos at the Civic. Other relevant documents need to be listed and copied as part of the application.
Section 13 To complete
Section 14 To complete

Once the form has been completed you will need to fax the completed form to the number given on the accompanying notes. You will also need to copy the whole of the form, together with any accompanying documents and the photos for both Children's Social Care records and to pass to the ASU.

You will also need to provide as part of the completion of the forms, a cover letter. The substance of this letter will be to advise UK Visas and Immigration of the nature of the application - that the applicant is turning 18 years and that it is intended that Newcastle also deal with the dispersal into a contracted property.

End