Joint Committee On Human Rights Appendices to the Minutes of Evidence


10. Memorandum from the Refugee Council Children's Section

  When the UK Government ratified the United Nations Convention on the Rights of the Child (CRC) in December 1991, they entered a reservation relating to immigration and in particular the right to enter or remain in the UK or to acquire British citizenship. The Government continues to believe that this reservation is justified in the maintenance of effective immigration control and further state that the human rights of children are protected under The Human Rights Act, which applies to all children in the UK. The Refugee Council has already submitted evidence to the Joint Committee outlining our concerns that refugees and asylum seekers are subject to marginalisation and discrimination in many areas of their lives. However it would be appropriate to consider some specific breaches of Human Rights legislation that apply to refugee children and the inevitable consequence which is that their rights under the CRC are not upheld.

ARTICLE 2—THE RIGHT TO LIFE

  Returning someone to a country of origin where they have been, or where there is a risk that they may be, persecuted, opens up the possibility that upon return they could be killed, thus breaching Article 2. We thus need to ensure that when the UK refuses an application for asylum the decision is correct and that the impact of return on any children affected by the decision has been fully assessed.

ARTICLE 3—FREEDOM FROM TORTURE, INHUMAN AND DEGRADING TREATMENT

  The Children Act (1989) and associated guidelines provides a clear framework to help identify which local authority is responsible for the assessment of vulnerable children and the provision of services arising from the assessment. However the experience of the Refugee Council is that many unaccompanied refugee children have difficulty accessing support and are often passed from one borough to another. This is exacerbated because it is rare for local authorities to liaise with each other in such instances. Children often feel that local authorities do not believe them and do not care about them. They also feel bewildered, unwanted and frightened. All in all quite degrading. In some instances children fail to access support completely and have no choice but to sleep "rough". This exposes them to unnecessary risk and we know of at least one youngster who recently became a victim of street crime having been refused support by the local authority he had approached.

  Many refugee children are unable to provide the paperwork necessary to reliably prove their age. In consequence the stated age of many adolescent refugee children is often disputed and assisting young people to establish their age to relevant agencies is currently a real theme of work with refugee children. In the main an "age dispute" effectively means the applicant is treated as an adult until they can prove otherwise. In some instances however, local authorities are proactive in attempting to establish age. We know of many cases where clients are asked to undergo dental examination, sometimes requiring X-rays. The Refugee Council also worked with one young man who was subjected to a wrist X-ray even though the Royal College of Radiographers have stated that this practice should not be followed and alarmingly we know of a young women whose age was assessed following an examination of her genitalia.


ARTICLE 4—FREEDOM FROM SLAVERY OR SERVITUDE, FORCED OR COMPULSORY LABOUR

  There is growing evidence that a significant number of refugee children are trafficked into the UK prior to commencing an exploitative working relationship with a third party. It remains a challenge to instigate child protection procedures in such cases and we have yet to systematically develop procedures for supporting and protecting these children. Indeed the state still seems to have difficulty in always perceiving trafficked children as victims rather than perpetrators of crime.

ARTICLE 5—THE RIGHT NOT TO BE UNLAWFULLY DETAINED

  The Immigration Service has powers to detain. In the recent Home Office white paper a clear intention to detain more asylum seekers was noted as part of a commitment to return increased numbers of failed asylum applications. Children are sometimes detained as part of family groups, rather than be separated from their carers, though without an assessment by a child care specialist that this is in the child's best interest. The immigration service reserves the right to detain unaccompanied children in exceptional circumstances.

  There is no automatic right to a bail hearing and thus we cannot assume that there is always judicial oversight when children are detained. Even when there is an appearance before a court cases would be heard before a judge/adjudicator experienced and specialised in making decisions concerning children. There are no Immigration detention facilities that provide the necessary support for unaccompanied children and indeed such children would be detained alongside adults. Many (if not all) staff working in detention facilities are not subject to employment checks and very few receive training in identifying and responding to child protection concerns.

ARTICLE 6—THE RIGHT TO A FAIR HEARING

  The asylum determination procedure is complex. Most children within families would not lodge their own claim but would be linked to an adult family member. Thus many children do not have an opportunity to present their cases for asylum which could have substantive differences to that of the person to whom they are linked.

  There is reference in the immigration rules regarding the gathering of information relating to the asylum applications of unaccompanied children and the decision making process but the UK effectively subjects unaccompanied children to an adult asylum determination procedure. It is not possible to divert unaccompanied children into a child-focused procedure because there isn't one. An unaccompanied child who appeals against a refusal of asylum is liable to find themselves before an appeal hearing. The safeguards that would normally exist in other court settings for children, whether they are in family proceedings or a juvenile court are not in place in Immigration appeal hearings. For example adjudicators do not specialise in working with children, welfare reports are not available, there is no independent representative such as a guardian ad litem to advocate on the child's behalf, and there is not provision to protect children when they are being interviewed about traumatic experiences.

  The paperwork relating to asylum applications is always in English and interpreters appointed by the Home Office or the courts do not necessarily have skills required for working with children.

ARTICLE 8—THE RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE, FOR HOME AND CORRESPONDENCE

  There is little demonstrable commitment to family reunion, whether in the UK, in a safe third country, or in the country of origin in relation to unaccompanied minors. Indeed even where unaccompanied children have been granted a status allowing them to remain in the UK the right to family reunion is discretionary.

  Children arriving alone to be reunited with family often experience difficulties with the practicalities of joining their families, particularly if the family group have been dispersed. There is provision for the National Asylum Support Service to find transport costs but confusion abounds as to how to access this funding. Younger children may be unable to travel long distances unescorted and again there appears to be a lack of clarity around the responsibilities of various agencies to facilitate this.

  In concluding this submission it should be noted that many refugee children are alone, isolated from their communities and vulnerable. They are often unfamiliar with the processes and systems in the UK or what entitlements to care and support are. Many feel either uncomfortable about challenging agencies that are not upholding their rights or they do not know how to set about doing this. A Children's Commissioner would be a very positive step towards ensuring that the rights of refugee children are fully addressed thus giving them an opportunity to rebuild their lives and enhance the opportunities to achieve their full potential.

22 November 2002


 
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