By Rachel Humphris, University of Birmingham
Many terms are used to describe people who are under eighteen years old who move across countries[i]. In addition, countries around the world have developed many different definitions for ‘child’, ‘unaccompanied children’, ‘unaccompanied minors’ and ‘separated children’ as they apply within the context of their immigration, asylum, child protection and criminal justice systems. For example, many countries appear to be using definition within the UN Convention on the Rights to the Child (CRC). However, even where the same words are used, interpretation and implementation may provide children with vastly different rights and entitlements in practice.
At the international level, the CRC defines a child as every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier. Unaccompanied children are defined as children who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so (Article 22). Separated children are children who have been separated from both parents, or from their previous legal or customary primary caregiver, but not necessarily from other relatives (Article 9). These may, therefore, include children accompanied by other adult family members.
At the European level, the Statement of Good Practice for Separated Children in Europe[ii] states that it utilises the term ‘separated children’ rather than ‘unaccompanied children’, as it better defines the essential problem that such children face without the care and protection of their parents or legal guardian. In addition, they maintain that it more accurately expresses the social and psychological suffering that can stem from this separation.
European Union immigration systems use the term ‘unaccompanied minor’. EU asylum instruments define the term minor as ‘a third country national or stateless person below the age of 18 years old’[iii]. An unaccompanied minor is defined as a ‘minor who arrives on the territory of the Member States unaccompanied by an adult responsible for him or her whether by law or by the practice of the Member State concerned, and for as long as he or she is not effectively taken into the care of such a person; it includes a minor who is left unaccompanied after he or she has entered the territory of the Member States’.
In the UK, the term unaccompanied asylum seeking child (UASC) is used. The Home Office defines an unaccompanied asylum-seeking child (UASC) as a child who:
- Is under 18 years old when they submit their asylum application
- Is applying for asylum in their own right
- Is separated from both parents and is not being care for by an adult, who in law or by custom, has the responsibility to do so[iv]
Although the United Kingdom utilises the definition of a child held within the CRC, for the purpose of an asylum application the Immigration Rules state ‘a child is a person, who is under the age of 18 or, in the absence of any documentary evidence, appears to be under that age’. Age assessment procedures have created great difficulties for children seeking asylum. This has arisen particularly in response to the perception that asylum seekers may be trying to access specialized services and protections only available to children. A great deal of research and advocacy has focused on the contested problem of age assessments in the UK[v]. New practice guidelines for social workers have recently been issued by the Association of Directors for Children’s Services in order to provide clarity on this controversial issue[vi].
In the last decade in the UK there has also been a shift in the reason children become categorised as ‘unaccompanied asylum seeking children’ (UASC). The vast majority have ‘absent parents’. However, there are other reasons a child might be categorised as ‘unaccompanied’ and recent Home Office statistics indicate these children are increasing. For example, in 2006, less than 1% percent of UASC were looked after due to ‘acute distress’ or ‘dysfunction’ in the family. In 2015, this had risen to 10% of all UASC who are looked after in the UK[vii]. This raises a further question regarding the term ‘unaccompanied asylum seeking children’. Rather than arriving alone, as the term might imply, increasingly children are separated from their family when reaching the UK.
[i] Some examples include: unaccompanied and separated children (Australia); unaccompanied minors (European Union); separated minors (Finland); unaccompanied minor asylum seekers (Netherlands); protected juveniles (United Nations); unaccompanied and separated children outside their country of origin (United Nations); unaccompanied alien children (United States of America); unaccompanied asylum seeking children (UK)
[iii] Reception Conditions Directive; Asylum Procedures Directive; Qualification Directive; Dublin Regulation; Directive on Residence permits for victims of human trafficking; Family reunification Directive. For more information see http://www.connectproject.eu/glossary.html
[v] Office of the Children’s Commissioner, The Fact of Age: Review of case law and local authority practice since the Supreme Court judgment in R(A) v Croydon LBC , 2012; Refugee Council, Not a Minor Offence: unaccompanied children locked up as part of the asylum system, 2012; Welsh Refugee Council, Young Lives in Limbo: the protection of age disputed young people in Wales, 2011; Refugee Studies Centre, Negotiating childhood: Age assessment in the UK asylum system, 2010; Immigration Law Practitioners Association, When is a child not a child? Asylum, age disputes and the process of age assessment, 2007
[vi] ADCS Practice Guidance on Age Assessment http://adcs.org.uk/safeguarding/article/ground-breaking-practice-guidance-on-age-assessment-published Refugee Council response: http://www.refugeecouncil.org.uk/latest/news/4453_ground_breaking_practice_guidance_on_age_assessment_published
[vii]Home Office (2015) National Tables (SFR34_2015) Table A3: Unaccompanied Asylum Seeking Children looked after at 31 March by gender, age at 31 March, category of need and ethnic origin https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/464757/SFR34_2015_National_tables.xlsx