By Rachel Humphris, University of Birmingham
Whatever their reason for being in the UK, if a child or young person is not a British or European Economic Area (EEA) citizen, they need permission to stay in the country. They are subject to immigration control and will require ‘leave to enter or remain’ [i]. The immigration status of children can greatly affect their rights and entitlements.
Here is a brief summary of the existing types of status most relevant to separated children and young people [ii] and the associated rights and entitlements.
The Home Office defines an unaccompanied asylum-seeking child (UASC) as a person 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 [iii]
Most children who arrive in the UK apply for asylum. There are a number of different decisions that the Home Office can make when assessing a separated child’s asylum claim. The Home Office can grant refugee status if they decide the child meets the definition of refugee under the United Nations (UN) Convention relating to the Status of Refugees (1951) [iv].
A person granted refugee status will be given leave to remain for five years. After five years people with refugee status or humanitarian protection can apply to stay permanently. Permanent status is also called ‘indefinite leave to remain’. Few separated children who apply for asylum are currently granted refugee status in the first instance. Between 2009 and 2013 less than 20% of the total numbers of asylum decisions were granted refugee status [v].
Humanitarian protection may be granted where an asylum seeker is refused refugee status but it is considered to be too dangerous to return them to their country. Very few separated children are currently granted humanitarian protection. Between 2009 and 2013 less than 1% of initial asylum decisions granted separated children humanitarian protection [vi].
The most common status granted to separated children is ‘UASC leave’. Until April 2013 this type of leave was referred to as ‘discretionary leave’ however new Immigration Rules incorporated the Home Office policy of granting leave to unaccompanied asylum-seeking children [vii]. If requirements are met, limited leave is granted for a period of 30 months or until the child turns 17.5 years old, whichever is shorter (this was changed from three years or until they reach 17.5 years old in July 2012) [viii].
This becomes important for children approaching their 18th birthday who have not yet received a decision regarding their asylum claim. If the Home Office makes a decision on an asylum claim when a child has turned 18 and the asylum and humanitarian protection claim is refused, the Home Office will not grant the child limited leave as an unaccompanied child [ix]. Delays in the system can therefore prevent them from being treated as a child and from being granted limited leave as an unaccompanied child. This can be referred to as ‘ageing out’.
All children identified as UASC are accommodated and ‘looked after’ under section 20 of the Children Act 1989. Before 2003, children could also be supported but not accommodated under section 17 of the Children Act 1989. This is no longer the case due to a landmark ruling that has come to be known as the Hillingdon Judgement [x] . However, there were reports that there was still some ambiguity regarding how to support children after this judgement [xi]. In policy and statutory guidance a ‘looked after child’ is a child who is being supported under section 20 of the Children Act by a Local Authority. These children may also be referred to as ‘eligible children’ if they have been looked after by a Local Authority for 13 weeks.
This duty comes to an end when children reach their 18th birthday. Those who were previously considered ‘eligible children’ (i.e. were ‘looked after’ for more than 13 weeks before their 18th birthday) qualify for support (under sections 23C – E and 24 of the Children Act as amended by the Children Leaving Care Act 2000). These young people may also be referred to as ‘care leavers’ or ‘former relevant children’. This support should be provided until the young person is 21 [xii] years old or 25 years old if enrolled in further or higher education [xiii].
[i] Section 3 of the Immigration Act 1971
[ii] I use the term separated children following the Statement of Good Practice for Separated Children in Europe
[iii] Immigration Rules 352ZC to 352ZF
[v] Immigration Statistics – June 2014 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/348583/asylum3-q2-2014-tabs.ods (Table AS_09)
[vi] Immigration Statistics – June 2014 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/348583/asylum3-q2-2014-tabs.ods (Table AS_09)
[vii] Home Office (2015) Asylum Policy Instruction: Discretionary Leave v. 7.0 August 2015 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/460712/Discretionary_Leave_2__v7_0.pdf
[viii] Coram Children’s Legal Centre Migrant Children’s Project Factsheet. Limited leave for unaccompanied asylum seeking children http://www.childrenslegalcentre.com/userfiles/limited_leave_unaccompanied_children_04_13.pdf
[ix] See Home Office (2015) Asylum Policy Instruction: Discretionary Leave v. 7.0 August 2015 para 7.2 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/460712/Discretionary_Leave_2__v7_0.pdf [accessed 4th November 2015]
[x] R (on the application of Berhe) v Hillingdon London Borough Council  1 FLR 439
[xii] Section 23C(1) Children Act 1989
[xiii] Section 23CA(1) Children Act 1989