Guidance for Social Workers, Personal Advisers and
their Managers working with unaccompanied asylum
seeking children (UASC).
Produced By the ADSS ASYLUM TASK FORCE – October 2005
October 2005
1
Contents
Section
Page
Executive Summary
3
1
John Leaver’s Foreword
5
2
Introduction 6
3
Planning
11
4
Education, Careers and Benefits
25
5
Placements and Accommodation
33
6
Returns 44
Appendices
1
Glossary 53
2
Stages IND
62
3
IND Functions
64
Flowchart showing support options when UASC
4
67
reach 18.
5
Training and Workforce Development
68
6
Further Reading
69
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EXECUTIVE SUMMARY
1.
The ‘Transitions Work Group’ was set up to map the challenges facing
social workers and personal advisers working on the pathway plans for
former unaccompanied asylum seeking children (UASC). At that time the
key transition was at the 18th birthday and the change to adult status.
The challenges in this situation were, and remain significant, as the
young person no longer benefited from Immigration and Nationality
Directorate (IND) concessions to children. If the asylum application has
been unsuccessful there are severe restrictions on rights to access
services in the UK. Indeed while the outcomes of individual asylum
applications cannot be known in advance, the overall low rate of success
is a fact. The low success rate poses a continuing challenge to social
workers and personal advisers and this guidance offers a fresh
perspective.
2.
The care and the immigration contexts both changed dramatically within
the lifetime of the work group. Planning responsibilities increased and
periods of leave granted by IND got shorter. Previously the concession
not to remove children unless there were suitable reception
arrangements in their country of origin effectively prevented the removal
of any lone child under 18 from the UK. An unintended consequence
was that crucial and difficult decisions about integration, return or
removal were deferred to age 18 and beyond. IND active review teams
have begun to take post 18 delays out of the system and returns have
become a real possibility for under 18s. The work group accepted the
challenge of this wider agenda and looked at how to build in a tailored
approach taking account of immigration issues from the earliest possible
point in the process. This is not to say that it has developed the
necessary guidance for early returns but merely that it has noted them
as an increasing possibility. Given these changes decisions about the
right to remain in the UK for UASC will be faster and have more
immediate impact on care planning. UASC are thus children in transition
in a special sense and it would be a failure of imagination and empathy
to confuse these transitions with those faced by citizen children.
3.
However at the time of preparing this guidance it is still the case that
most UASC approach this crucial transition with important decisions
about their future stay in the UK still not finally resolved. The young
person’s need for rapid decisions and certainty has to be tempered with
their right to due process under complex rules governing immigration
decisions and appeals. In the meantime plans have to cope with this
uncertainty and a range of different possible outcomes.
4.
UASC and former UASC are entitled to have pathway plans since the
Department of Health Guidance LAC (2003) 13 and the consequent
‘Hillingdon’ judgment in late August 2003. The plans need to have a
breadth and flexibility to meet the many challenges facing this group.
Transitional planning for this group must not reduce the commitment to
delivering the 5 outcomes set out in Every Child Matters – Change for
Children. Health, Safety, Achievement, Economic Security and Positive
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Contribution are best delivered by a planning process that takes account
of Home Office decisions and understands and appreciates what the
outcomes of these decisions may be for UASC - ‘immigration smart’.
Social workers and personal advisers will also need to consider the
implication of the recent Green paper – Youth Matters in their planning.
5.
This transitions guidance argues that pathway plans need to consider
contingencies to reflect that while some UASC will be allowed to remain
in the UK indefinitely others will not be allowed to build their futures here.
Preparation for alternate futures that meet different challenges at key
stages in the asylum process and answers the changes and restrictions
that arise as part of the process of seeking asylum will be a necessary
aspect of pathway planning for this group of young people. The plans will
need to be flexible and it is essential that contingencies be developed.
The guidance raises the issue of how the pathway plan might be
projected beyond the point of leaving the UK when British agencies lose
legal responsibility and power to provide assistance.
6.
Planning that takes account of the likelihood that many UASC will have
their asylum application refused and will need to return to their country of
origin is a better starting point than a prevalent and uncritical assumption
of permanency in the UK. Although a decision to return a UASC to their
country of origin is most likely to be a disappointing outcome for them
and they may well struggle to come to terms with its implications, the
decision should never come as a complete shock to the youngster.
7.
The guidance outlines the importance of personal education plans for all
UASC, which address the range of needs and choices of young people
and is flexible so that long-term goals can be achieved either in the UK
or in the child’s country of origin. The document also considers realistic
and safe alternatives to prevent UASC working unlawfully and/or in
dangerous conditions in the unregulated economy.
8.
The context within which placements and accommodation are provided
for UASC is briefly examined and once again the need for flexible
pathway plans is stressed. A consideration of the needs profile of UASC
is presented that distinguishes their particular needs from the
mainstream looked after children population whilst reaffirming their
status as children first and foremost. Refugee children’s identity needs
also require that the links with family, culture and community are kept
alive, even where they have indefinite leave to remain in the UK. The
task of rebuilding links between UASC and their families and
communities is likely to be fraught with difficulties often arising from
partial disclosure of necessary information. This is particularly important
pending the establishment of certainty about their future.
9.
Joint working with IND and in particular the Immigration Service in its
removal function is addressed. Social workers and personal advisers
should not turn away from young people during this crucial phase.
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Section 1
1.
FOREWORD BY JOHN LEAVER.
This guidance was developed by a group of practitioners and policy writers
and I believe that it is both an important and timely document. It addresses a
difficult period in any young person’s life and for UASC these difficulties are
exacerbated by the possibility that they may have to leave the country in
which they hoped to receive asylum. We should not forget that how we work
with these young people when they first arrive and come to our attention is an
important factor that impacts on how we can assist them in dealing with the
transitions that they face. The social work task is, when all is said and done, to
help UASC, to assist them through a difficult process and where possible to
enable them to achieve their aims. We must remember that much of our work
with UASC takes place long before they enter this transitions phase.
There are many other professionals who work with UASC and the time of
transition can be difficult for them too. But the guidance is primarily for social
workers. It is written at a time when the numbers of UASC entering the
country has declined and this has raised a new challenge around the ability of
local authorities to train and retain specialist workers. There is a danger that
the hard won knowledge in this area will be diluted. The relevance of existing
training in working with UASC needs to be emphasised but in order to work
effectively with this group’s particular needs local authorities will also need to
consider specialist training for staff as appropriate.
We all know that this is an area of policy and practice subject to constant
change with new initiatives, guidelines and directives emerging all the time. It
will doubtless continue to remain so and this document will need to be subject
to periodic review if it is to remain relevant. IND practice sometimes appears
to fall short of the theory. For example, UASC often arrive at the ‘end of the
line’ yet removal directions are not set, or UASC whose leave to remain has
expired continue to attend their college placements. This ‘reality gap’ can add
further confusion to the planning process.
As this work has progressed it has become increasingly clear that
professionals need to adapt in order to help UASC meet the considerable
challenges in their lives. Not least is the need to develop an international
perspective in planning with these children. In addition to achieving active
inclusion during their stay, the young people, if they are allowed to remain
here, must be helped to go on to full integration in the UK. However if they
must leave the UK, they will need support to help with reintegration in another
country, adjusting their own, and their families, hopes and plans along the
way.
I hope that social workers find this guidance helps them in their task.
John Leaver
Chair, ADSS Transitions Task Group
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Section 2
2. INTRODUCTION
For the purposes of this guidance children and young people under 18,
who arrived in the UK and applied for asylum without having parents or
guardians to turn to, will be referred to as ‘unaccompanied asylum-
seeking children’ or ‘UASC’. All other technical terms and acronyms
used in this document are explained in the Glossary at the end of this
paper.
2.1 The transition to adulthood can be difficult for all young people, and
especially for children growing up in public care. The institutions they
depend on and rules governing their transitions can lead to uncertainty
and confusion, increasing the stress surrounding the adoption of a new
role in society, and the start of a new phase in life. These pressures are
even greater for former UASC, who for the most part are aged 18, when
they must face crucial transitions, often including the end of their right to
remain in the UK. Many social workers report that they do not find it easy
to raise the issue of leaving care with UASC. Young people are often
understandably reluctant to confront this prospect as it entails the
probability of having to leave the UK. Great understanding is called for
from the social worker or personal adviser. Many social workers
experience a tension between care and immigration legislation.
2.2 The effective decision that will return young people who are
unsuccessful in their asylum applications to their country of origin is
often made when they are 16 or 17. The commonest but not the only
care-planning framework, assumes permanency and integration in the
UK. The reality is that the immigration legislation establishes that some
can stay permanently but that many cannot. It is crucial therefore that
some clear thinking which confronts this issue for the over 18’s is
developed and the lessons learned are used to reduce the uncertainty
experienced by their older peer group. In the near future, as reception
arrangements are developed, UASC may well be returned to their
country of origin before they are 18.
2.3 Decisions bearing on return and affecting rights in the UK can have a
far-reaching impact on young people when they are distant from homes
and families. They are often unfamiliar with regulations and rights, and
uncertain about immigration status and their stay in the UK. This can be
exacerbated by the difficulties that many UASC have in accessing
quality legal representation as they navigate through a testing and
complex procedure that is difficult for them and the professionals
supporting them to manage. Hence the need for specialist guidance
based on best available practice and informed by the latest available
versions of evolving policies.
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link to page 7 link to page 7
Section 2
2.4 In practical terms the social worker or personal adviser must be highly
conscious of the changing immigration status of the young person. As
well as the indication of possible final outcome, the associated changes
along the way can affect entitlement to various benefits and to leaving
care support. The funding streams of the pathway plan therefore need to
be kept under review and an understanding of its statutory limits
developed. Contingency plans will be needed to ensure pathway plans
stay on course at each of the change points.
2.5 As this guidance developed the issue of ‘end of the line’ cases arose.
The Nationality and Immigration Act 2002 Section 54 and Schedule 3 set
potential limits on the ‘Leaving Care’ powers and duties of Local
Authorities. The legislation has to be read in the context of statutory
guidance
1 published by IND (December 2002). The Home Office legal
opinion indicates that for a majority of former UASC support should end
once the outcome of the final appeal is known. However this
interpretation is not a matter of consensus. Many Local Authorities have
read the guidance as authorising support to continue until the young
person actually leaves the UK, though they often face difficulties in
deciding what advice and support they should offer to former UASC who
are making plans that go beyond the end of their period of leave. The
group responded to this problem by recommending that IND review the
current statutory guidance in the light of the reported problems and
differences of opinion. The recommendation has been accepted and a
working party that includes National and Local Government and Non
Governmental Organisations is due to address this issue.
2.6 This guidance sets out parameters for social services staff, at whatever
level of seniority, who have the task of supporting UASC. It is not
statutory guidance in the way that the Integrated Children System is and
therefore it works with and supplements the processes, exemplar forms
etc. for working with looked after children and other children in need. It
represents the current best advice available from the Association of
Directors of Social Services, which is the senior professional body in
social work in England and Wales. It should prove useful to other
statutory agencies in partnerships and professional networks. It will also
inform voluntary sector workers in their vital role working with UASC.
2.7 This guidance seeks to establish some consistency in professional
approach given the high levels of uncertainty and the rapid changes in
policy and circumstance. It is based on the following principles,
• The best interests of the child/young person are the central concern
of Local Authorities. However, for Home Office staff the best interest
requirements need to be balanced with immigration dec
isions.2
1Local Authorities are legally bound to act in accordance with statutory guidance issued on
Schedule 3, as opposed to Best Practice Guidance such as the Transitions Document.
2The UK Government has entered a reservation on the UN Convention on the Rights of the
Child in relation to immigration policy. Furthermore concessions made to UASC do not apply
to former UASC aged 18 or more, whose immigration issues are dealt with in the same way
that any other adult in the asylum process would be.
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Section 2
• The role of the social worker is to support and prepare all these
young people for transitions to adult status in whichever country
they establish permanent residency.
• Decisions about a young person’s future will be as transparent and
speedy as possible.
• In working with UASC, all professionals should make every effort to
reduce delay in establishing permanent placements and enabling
integration in a country where they have permanent rights of
residence.
• Where there are options, these will be laid out clearly so that the
young person may be enabled to make an informed choice.
• UASC should be involved in decisions about their care like any
other children/young people.
• UASC will be helped to identify key points in the asylum process
and understand the outcomes and implication of IND decisions.
• Effective communication between social work and immigration staff
will ensure accurate and timely decision-making, and wherever
possible reduce stress and maximize benefits for young people.
• Agencies and individuals will acknowledge and respect each other’s
distinct roles while maintaining co-operation through professional
standards.
• Information will be shared only in accordance with the principles
established in Every Child Matters (TSO 2003, Ch.4) and the
guidelines laid down in Department of Health (DH) guidance:
www.doh.gov.uk/safeguardingchildren/index.htm
2.8 How are social workers to integrate these new emphases into their
practice, at the same time as providing the consistent, continuous
support, which all unaccompanied young people need? The social work
task is, after all, to help and assist this group of youngsters. The purpose
of this document is to set out the options confronting the young people,
and outline best practice in working with them. The basis for effective
social work suggested here is a combination of:
•
Clarity – making their real choices as clear to the young people as
possible, as early as possible, and with an understanding of the
limits of what services can provide.
•
Handling uncertainty through contingency planning – the
outcomes of the asylum and immigration processes cannot be pre-
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Section 2
empted but ways need to be found to ensure that the young person
can continue to develop their pathway to adulthood.
•
Timely decisions – above all by and with the young people
themselves as their decisions crucially affect the options available
to them both immediately and in the future.
•
Avoiding Value Judgments about the outcomes of the
immigration process so that these are more easily worked with.
•
Partnership – there will be a range of different perspectives some
of them conflicting but the social work task remains that of ensuring
that all views are represented within the planning process. As well
as immigration colleagues, partnership should include planning
together with education, housing, Connexions, Jobcentre Plus, the
voluntary sector and the young people themselves, to ensure that
the time UASC spend in the UK is of real value to the futures they
realistically face.
2.9 For guidance relating to the arrival of UASC and the assessment of their
needs, see -
INTAKE: framework and practice guidance for the safe and
fair reception and assessment of children and young people seeking
asylum in the UK without parents or guardians (ADSS 2003). This
guidance and the accompanying formats (based on the Integrated
Children System) include materials for assessing age at any stage when
the young person’s stated date of birth comes under question.
2.10 The guidance will assume the use of the DfES (DH) Integrated Children
System planning guidance to ensure that the needs of asylum seeker
children be considered in the context of the particular needs of all looked
after and former relevant children. There is no intention to suggest that
the fundamental needs of asylum seeker children are different from any
other ‘child in need’ of similar age and ability. However the experience of
the asylum process predicts the additional need for skilled, specialist,
social work input to deal with the challenges and changes it may entail.
2.11 The group included representatives from the following sectors. Though
this guidance is a joint document it does not necessarily reflect all the
views of the contributing agencies.
• Local authority social service departments.
• The Connexions Service.
• The Refugee Council.
• Save the Children (UK).
• The Office of the Deputy Prime Minister.
• The International Organisation of Migration (voluntary returns).
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Section 2
• Department of Health.
• Department for Education and Skills.
• IND Asylum Policy and the National Refugee Integration Sub-group
on Unaccompanied Children.
• IND Asylum Casework.
• IND Immigration Service Border Control.
• National Asylum Support Service (NASS).
2.12 The work group set out a work programme and met on a number of
occasions. New material was developed through sub groups.
Participants drew on their own good practice experiences for much of
the work but soon found that they were in areas of great uncertainty
where new materials had to be developed specifically for this guidance.
Indeed in some instances the development work and its roll out are still
not complete. In particular the guidance should facilitate the
development of better communication between social workers and IND
in all its different functions, at all the stages of the asylum process.
October 2005
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Section 3
3 PLANNING
CHILDREN ACT, 1989.
The terminology used in the guidance is as follows,
• Looked After Child - Aged 15 or less and accommodated by a Local
Authority.
• Eligible Child – Aged 16 or 17 and looked after by a Local Authority.
• Relevant
Child
-
Aged 16 or 17, but no longer looked after by the
local authority having completed at least 13 weeks as a looked after
child since their 14th birthday.
• Section 17/child in need - Aged 16 or 17 and receiving some
Section17 support.
• Qualifying Person – Aged 18 or more was looked after for less than
13 weeks – (see Section 24 of the 1989 Children Act – advise, assist
and befriend)
• Leaving Care Service – social work service for eligible, relevant,
The interaction between Care Planning and the Asylum
Process
3.1 Major changes in approach in both the care and immigration legislation
and policies have combined to challenge the previous status quo for
UASC. Previously UASC would simply be treated the same as any other
young person in the UK in similar circumstances.
Immigration policy has
developed a series of checks on immigration status designed to
encourage asylum seekers with failing cases to opt for early return. The
net effect is that Local Authorities need to plan more thoroughly for most
UASC to cope with the speed and volume of decisions in order to
support them to achieve the outcomes that are necessary for all children
and young people
Background to Changing Care Practice
3.2 Summary Table – Care Status
1989 Children Act
Comments on the impact of the 1989 Children Act
Status at 18th
status on duties post 18.
birthday
‘Eligible child’
Are 16 or 17, has been looked after for more than 13
weeks since 14th birthday, and has remained in care.
Will become a former relevant child at 18 and will be
entitled to a personal adviser, and a pathway plan. The
Local Authority can fund the plan from a variety of
sources in combination (see table at 3.40 below).
‘Relevant child’
Are 16 or 17, but no longer looked after by the Local
Authority having completed at least 13 weeks under
section 20 since their 14th birthday. May have left care
October 2005
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Section 3
after their 16th birthday if, following an assessment of
their needs and a statutory review of their care plan,
there is agreement between the professionals with
responsibility for their care and the young person that it
will be more appropriate for them to have a more
independent lifestyle. UASC would not be entitled to
benefits, even where leave has been granted, until they
reach 18. The Local Authority must provide funding for
accommodation and maintenance. They must have a
personal adviser and a pathway plan. They will be
former relevant children from the age of 18.
Looked after
The former UASC will be a qualifying child under
child but does
section 24 and a level of advice assistance and
not complete 13
befriending needs to be considered. They will not
weeks care
qualify as former relevant children. They may qualify for
before their 18th
NASS support, as Home Office policy is not to make
birthday.
decisions where young people are within 2 months of
their 18th birthday. They are thus still asylum seekers
having had no decision or leave and would otherwise
be destitute.
Supported under Social workers will have to consider, the circumstances
Section 17
in which the decision to support under section 17 was
made. A key question will be if the young person gave
informed consent to this course of action. Another vital
issue is the level of assistance over and above housing
that was provided to the young person. However
practitioners may wish to seek policy and legal advice
from their managers (see 3.4 below).
3.3 The processes involved in deciding on the 1989 Children Act status of a
particular UASC fall outside the scope of this guidance. In the majority of
cases, such decisions will have been made before transition at 18 is
considered. However in the wake of Department of Health Guidance
LAC (2003) 13 in June 2003 and the ‘Hillingdon judgment’ in August
2003, practitioners will need to understand the various situations in
which these young people find themselves and the range of legal duties
that a local authority has. While the guidance is directly relevant to
England and Wales, which share this legislation, it will have implications
for the treatment of UASC and former UASC in Scotland and Northern
Ireland.
3.4 In light of the Children (Leaving Care) Act 2000 and the ‘Hillingdon
judgment’ it is expected that following an appropriate assessment most
UASC will initially be looked after and provided with services and support
under section 20 of the 1989 Children Act. Where a young person is 16
or 17 and has been looked after for more than 13 weeks the Local
Authority providing care will incur leaving care responsibilities for them.
An exception to this general rule is where a young person has expressed
a wish not to become looked after, and is assessed as competent to
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Section 3
care for themselves. In such instances a section 17 response may be
appropriate and the Local Authority may support the young person under
this section, ‘
including help with accommodation’. In the context of this
Guidance the term ‘accommodation’ refers to the provision of housing.
The power to offer this service without incurring leaving care duties is set
out in an amendment to section 17 of the 1989 Children Act (see the
Adoption and Children Act 2002 section116).
3.5 In deciding whether young people qualify as former relevant children
consideration needs to be given to both the level of support and the type
of accommodation that they received. Many Local Authorities have
concluded that it is likely that leaving care duties exist for virtually all
UASC whether or not they formally change their Children Act status
before they reach 18.
3.6 It should be borne in mind that a small number of young people will
arrive within 13 weeks of their 18th birthday. They will not qualify as
former relevant children even if they are cared for under section 20 of
the 1989 Children Act. However such young people may be ‘qualifying
children’ under section 24 of the 1989 Children Act and as such will be
entitled to ‘advice, assistance and befriending’. It is also likely, given
Home Office policies that they will not have had a decision on their
asylum claim. If they can satisfy the conditions of section 55 of the
Nationality Immigration and Asylum Act 2002 by applying for asylum as
soon as possible they may be entitled to NASS support and if so are
likely to be dispersed (see Draft NASS Policy Bulletin 29).
3.7 However even in cases where the Local Authority is content that it has
complied with guidance and does not have a leaving care duty it is
recommended that the local authority should set in place a transitions
plan based on the core assessment for a ‘child in need’ covering the
areas set out in this guidance. A child in need review when the young
person is aged 17 years and 6 months should develop this.
Immigration Status
Indefinite Leave to Remain/Refugee Status.
3.8 If a UASC claim is settled with a grant of Indefinite Leave to Remain,
then planning which moves them towards full integration in the UK can
take place. However in these cases it is important to assist in acquiring
appropriate documents to prove their status. It is also important for their
future identity to enable contact to be established with their family if
possible.
3.9 The young person is entitled to access the same services as any other
child, and if they qualify as looked after or former relevant children for
the appropriate associated support. However social workers should
ensure that the UASC with whom they work fully appreciate the
importance of original copies of their IND documents. It is recommended
that these documents are treated as carefully as a passport and indeed
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Section 3
they often act as a passport to benefits or Education Maintenance
Allowance in the case of Indefinite Leave to Remain etc. In most cases
duplicates will not be accepted. Social workers should also consider
applying for a National Insurance Number as soon as the grant of any
form of leave is received (see 4.32 and 4.33 below). This will help avoid
delays later in the process.
Humanitarian Protection
3.10 Humanitarian Protection is granted for a limited period and recognises
that the young person needs protection from a specific circumstance
(e.g. in theory the government of the child’s country of origin should be
able to offer protection but in practice can not deliver this). However the
nature of the need is not considered to meet the 1951 Geneva
Convention criteria set out for refugee status. It may arise from a
particular circumstance for that child or family and is often of a temporary
nature. In that sense, the end of a period of Humanitarian Protection will
result in a review of the current circumstances facing an UASC if
returned to their country of origin, and if these have changed for the
better, then an extension of leave may not be granted.
Discretionary Leave
3.11 Discretionary Leave is only granted when the application has been
refused on both refugee and humanitarian grounds
. Leave in this
category only recognises problems of a practical nature that prevent the
former asylum seeker from leaving the UK. In the case of UASC this is
usually entirely to do with their youth and vulnerability and the unknown
and potentially unsuitable arrangements they are returning to. The aim of
the grant of discretionary leave is to demonstrate clearly that there is no
right or entitlement to a permanent stay in the UK.
3.12 UASC should not assume that they would be allowed to remain in the
UK beyond the limits of the leave. For this reason the length of leave, if
granted, is likely to be of short duration, i.e. for one year or up to their
18th birthday, so that the problems of overcoming the practical barriers to
return are considered and are given proper focus. There is recognition
currently among professionals that if a young person must return, it
should happen earlier rather than later. Delaying returns therefore
should only be sought by a Local Authority where there are very good
reasons.
The Need to plan for Different Outcomes
3.13 It is by no means certain that the young people will spend their adult
lives in the UK. Therefore a way needs to be found to ‘contingency plan’
outcomes based on either a successful or unsuccessful outcome of a
young person’s asylum claim (see 3.16 below). Education, training and
employment plans for young people need to be at least potentially
capable of achievement in a variety of ways and in different countries
(see Section 4 below). The possibility of return also needs to be
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Section 3
addressed (see Section 6 below).
Working with short periods of leave
3.14 Contingency planning for UASC poses additional challenges for
professionals. The shorter the time period within which the social worker
or personal adviser is working the more difficult it is to access resources.
For example most education services in the UK are based on the
‘academic’ year and plan for important qualifications over a period of
several academic years. There is a considerable responsibility resting on
professionals to develop plans for UASC that have a reasonable chance
of coming to fruition within the timescale in which it is likely that the
young person will be allowed to remain in the UK.
Setting about planning
3.15 It is important that professionals learn to support UASC within the
frameworks imposed by immigration law without either isolating or
damaging the aspirations of the young person. Misunderstandings and
difficulties can arise from setting out plans assuming permanent rights
that may not be granted. Careful and realistic planning can help to
minimise the instances where ‘pathways’ are set out, which cannot be
delivered. At the same time the clearest possible milestones should be
developed to ensure that the young person is able to make progress in
reaching their potential.
3.16 In common with other good education and career planning, it is
recommended that a clear distinction be drawn between the aims of the
plan and the pathways to get there (for example, aiming to attain a
qualification in a particular subject rather than to attend a particular
college). Assisting a young person to understand this distinction will help
them to develop flexibility in their approach and maximise the opportunity
that they will achieve their goals. It can also help avoid defining their
success as their ability to remain in the UK, as this lies outside of the
control of the UASC and the professional network for providing their care
leaving support
The Pathway Plan
3.17 The pathway plan must address the possibility of the UASC returning to
their country of origin in parallel with a plan that is built upon the UASC
remaining in the UK. In either instance it is important to recognise that
factors that inform the original plans may change and in consequence`
planning should be flexible and must develop contingencies. The aim of
the contingency plan is to allow identified goals to be pursued in the new
circumstances.
Dealing with uncertainty
3.18 One of the social worker or personal adviser’s goals in working with
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Section 3
UASC will be to support them in managing the uncertainty of their
situation. The single most important factor for these young people during
the transitional period is likely to be the constant presence of a reliable
adult, and this role will often fall to the key professional.
Getting good information for the young person and the care
network
3.19 Good mutual communication links between the social worker or personal
adviser, UASC and IND should be established. Local Authorities should
ensure that they acquire copies of all original documents issued by IND.
On a regular basis they should also refer to the National Register of
Unaccompanied Children (NRUC) to check immigration status and other
queries made through the Central Point of Contact. NRUC will also help
the finance, commissioning and tracking processes and all Local
Authorities are expected to participate in contributing and maintaining
the data necessary for it to run effectively. An outline of IND functions is
given in appendix 3. The different functions and the speed of transfer of
cases are both reasons why it is best to use the Central Point of Contact
and NRUC for queries.
3.20 Asylum applications are always based on individual circumstances.
However social workers and personal advisers should keep up-to-date
with information about current policy and practice in relation to decisions
on immigration status for young people from the specific countries
involved. They should suggest to UASC that they also access this
information and discuss it with their legal representative. As well as the
statistics and ‘In Country’ information that can be found on the Home
Office web site
www.homeoffice.gov.uk the Refugee Council
www.refugeecouncil.org.uk among others, offer detailed web based
briefings on countries and IND policies.
3.21 Foster carers may often be required to prepare themselves for
supporting UASC who are facing an involuntary return to their country of
origin. At the same time they need to support UASC deal with the
uncertainties around the asylum application and the anxieties that
reference to statistics may trigger (e.g. where a child comes from a
country with a high rate of refused applications). This can arouse strong
feelings and can leave foster carers in a predicament. Social workers
need to be aware of this at the outset and they bear an important role in
helping foster carers understand the meaning of asylum and the context
within which it is set. Local Authorities should consider providing foster
carers with specialist training in working with this uncertainty.
The Asylum Process
3.22 A chart setting out the key points in the asylum process is included in
appendix 2. The number of checks and balances and the individual
circumstances of UASC mean that any such chart can only offer a
schematic representation of the overall asylum process.
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Section 3
Decisions
3.23 The initial IND decision is one (early) stage in a complicated process. It
is not usually the same as a final outcome, which may not occur for
months or even years. Special IND caseworker teams based in Croydon
or Liverpool make decisions in the case of child applicants. A description
of the different functions and Directorates in IND is given at Appendix 3.
They will consider evidence usually in writing from the UASC as well as
all other available evidence to see if a case has been made under either
the Refugee Convention or Human Rights legislation.
3.24 The decisions available are,
• Refugee Status/Indefinite
Leave
to Remain (see 3.8 and 3.9
above).
• Humanitarian Protection (see 3.10 above).
• Discretionary Leave (see 3.11 and 3.12 above).
• Refusal, in which case they may be removed and/or may not be
supported following their 18th birthday.
Active Review decisions 3.25 The other kinds of decisions now being made by caseworkers are in the
IND Active Review process. In most current cases these decisions
involve consideration of whether a period of leave should be extended or
whether a return is possible or in the case of a former relevant child
whether removal is appropriate. Active review caseworkers will consider
whatever grounds a young person puts forward at the time. For example
an application to extend leave may involve a fresh asylum application
based on a change in the country of origin. In the past active review
decisions have taken place post 18 though with shorter periods of leave
pathway plans for looked after children will have to take account of the
decisions.
3.26 It is usual for the active review process to include an invitation for the
young person to attend a face-to-face interview with a caseworker. This
is an important opportunity and unless the legal advice is against
attendance (see 3.27 below) the young person should be helped to plan
and prepare for this. Social workers should accompany UASC to these
interviews. If this is not possible the social worker should ensure that an
informed independent adult who can promote the welfare of the young
person attends with them.
Interviews for asylum decisions
3.27 These interviews are currently rare but may become more frequent as
interviews will allow UASC the opportunity to state their case in person.
The merits and demerits of attending an interview are not a matter of
consensus among legal advisers and it remains to be seen how this
policy will develop. It is important that, prior to an interview, UASC are
October 2005
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Section 3
prepared for, and understand the purpose and process of the interview.
If Leave is granted
3.28 If a UASC is granted leave to remain, regardless of the type, they may
be entitled to access state benefits, provided they are not excluded by
their care status (eligible or relevant children). If they are applying to
extend their leave and have put in a timely application, or have lodged a
timely appeal against the refusal to extend, their access to benefits
should continue. It is important that original documentary proof from the
Home Office is retained to establish this entitlement (see 3.9 above).
3.29 Another entitlement that arises from a grant of leave is that a UASC can
apply for a National Insurance Number regardless of their care status. It
is advisable to apply for this early, as there can be delay and problems
with requirements concerning proof of identity (see 4.32 and 4.33
below).
Appeals and the ending of support
3.30 Most UASC appeal against the negative decisions that they receive at
the differing stages of their asylum application. The outcomes of appeals
can be very significant and UASC may need additional support to help
them where appeals are not upheld.
3.31 Not all UASC will be entitled to remain in the UK pending an appeal
following receipt of a negative decision. The decision on the right to a UK
based appeal depends on the Government’s view of the safety of their
country of origin. Those granted a period of leave of one year or less will
not have a right of appeal at the initial stage. Currently many UASC do
not appeal negative decisions because they have a substantial period of
Discretionary Leave. However as Discretionary Leave becomes
restricted UASC are more likely to appeal soon after an initial negative
decision.
3.32 Where young people have been granted a period of leave they may
wish to apply to extend it. Refusal of this application can be the
subject of a UK based appeal.
3.33 The appeal decision can have a dramatic effect on the status of the
young person if they are 18 or older. In light of 3.30 (above) missing the
deadline for appeals can have serious consequences. It is thus
important that social workers ensure that young people have adequate
legal representation throughout the entire appeals process.
3.34 If the outcome of the appeal is negative the only notice that young
people will receive is the letter giving them the final outcome of the
appeal, including the requirement that they leave the UK. The Home
Office may define some young people in this situation as ‘persons
unlawfully in the UK’. If this is so the young person’s responsible
authority will be prevented from providing them continuing leaving care
October 2005
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Section 3
support and services, unless the Local Authority believes that
withholding the services would be an unjustifiable breach of their human
rights. At the point where appeals have been exhausted, and the
responsible Local Authority will be required to withdraw leaving care
support, the young person concerned will need practical help and
support in making their own arrangements to leave the UK as soon as
possible.
3.35 While advice about the nature and content of any appeal is the concern
of the young person and their legal adviser, the social worker or personal
adviser should be aware of the potential pitfalls.
3.36 Social workers and personal advisers should be aware that UASC are
entitled to publicly funded legal assistance at both their screening and
substantive interviews. This also applies where the age of the applicant
is in doubt and in such instances legal representatives may apply for
public funding to obtain medical evidence to clarify the client’s age. At
the appeal stage a solicitor or experienced adviser must consider
whether the case has a reasonable prospect of success. If the prospects
of success and merits of the case are borderline or unclear funding can
still be granted if the case has wider public interest, involves significant
human rights issues or is of overwhelming importance to the client.
Further funding may be available for cases that proceed to statutory
review, judicial review or the higher courts.
3.37 UASC have the right of review against a decision to refuse funding for an
appeal where the decision has been made on the merits of the case.
Social workers and personal advisers should note that representatives
should advise clients of this ‘right of review’ and that representatives
should also provide the relevant forms for review which are available
from the Legal Services Commission website. The representative should
also assist the UASC to complete the form. For further advice and
information see,
www.legalservices.gov.uk
3.38 In some cases the ending of leaving care support does not take place
until removal directions have been served and a given date to leave the
UK has passed (see 2.5 above). It is important to request information
from IND in order to appreciate the young person’s current situation.
New IND guidance on this subject is expected and will be attached to
subsequent revisions of this guidance when available.
Funding the pathway plan
3.39 A core task confronting social workers and personal advisers in
developing the pathway plan is to identify the financial resources needed
to meet the needs and aims identified therein. In this area as in many
others there are additional levels of complexity in working with UASC
and former UASC.
3.40 Summary Table – Pathway Plan Funding
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Section 3
Source of Funding
Comments
The Local Authority can reclaim money spent on
Home Office UASC
providing direct services to UASC. But the grant
Grant
will, without exception, stop at the young person’s
18th birthday. It is therefore important that the
review immediately preceding that date should
identify other funding that will be available to
support the young person.
Leaving care services are funded by Local
Leaving Care
Authorities from money they receive from Central
Funding
Government. The duty to fund services for former
relevant children can imply greater expense for the
Local Authority with UASC. For other former
relevant children there is an assumption that
benefits or earnings will be available and the Local
Authority contribution will be to provide the personal
adviser and top up other funding in order to best
meet the young person’s specific assessed needs.
Decisions will need to be made regarding the level
of support that the Local Authority can provide.
Local Authority duties are more clearly spelled out
for the expenses of education, training and
employment. In practice this means funding rent
and allowances as well as travel, books etc for
those aged 18 and in education.
In the case of former UASC there may be times
when the ‘Leaving Care’ money may have to fill
gaps in funding in default of other sources.
The DfES introduced the UASC Leaving Care
Grant in 2004 to help towards the costs of
supporting UASC care leavers (see 3.41 below).
Funding is targeted at those Local Authorities that
support large numbers of UASC care leavers (see
Draft NASS Policy Bulletin 29). Details of any
arrangements for subsequent years are not
currently available.
The leaving care powers and duties under Section
23c and Section 24 of the 1989 Children Act to
support a young person are affected by immigration
legislation. (See Section 54 and Schedule 3 of the
Nationality Immigration and Asylum Act 2002 -
Guidance to Local Authorities and 2.5 above.)
Eligible and Relevant children between 16 and 18
Benefits
years old cannot access benefits and Local
October 2005
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Section 3
Authorities must supply funding for all the elements
identified in the pathway plan, unless they are
earning a living wage, where they may be expected
to make a financial contribution.
Young people supported under Section 17 of the
1989 Children Act who have leave to remain in the
UK, of any sort, would be able to claim benefits
before they are 18. It may help to refer to the
Department of Health LAC (2003) 13 guidance,
which outlines the circumstances when support
under Section 17 of the 1989 Children Act may be
appropriate. Section 17 of the 1989 Children Act
has been amended by Section 114 of the Adoption
and Children Act 2002 to ensure that support
provided in this way does not mean that a child is
looked after.
However in some circumstances on turning 18 a
UASC who is leaving care will become entitled to
benefits. A social worker or personal adviser should
plan to utilise the access to benefit fully if the young
person is entitled. This is in keeping with
maximising their independence.
A UASC who is leaving care will qualify for benefits
if they have received leave to enter/leave to remain
in the UK, which continues beyond their 18th
birthday. The forms of leave are Indefinite Leave,
Exceptional Leave, Humanitarian Protection and
Discretionary Leave. Discretionary Leave is by far
the most common. It should also be noted that
where leave was limited but the UASC applies to
extend it before it expires, then access to benefit
will continue until the application and any appeal is
dealt with finally.
It is important to bear in mind that young people in
education may lose their entitlement to benefits at
19 if the course they are attending is described as
full time.
For those who can claim benefits, many Local
Authorities will use additional allowances based on
an individual assessment of need to ‘top up’ care
leavers who are in education or training to ensure
that they are always better off than they would be if
unemployed.
Young people with leave to remain in the UK will be
Earnings
entitled to work. However it is necessary to obtain a
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Section 3
National Insurance Number (NINO). Although the
NINO is not required for benefit purposes for
eligible or relevant children it is useful to apply for a
NINO for work purposes as soon as leave is
granted (see 4.32 and 4.33 below).
Local Authorities should have policies about how
far young people in work might be expected to
contribute financially to the costs of their upkeep
within their pathway plan. Conversely, if care
leavers are on a low income and risk being worse
off than they would be on benefits, the Local
Authority may subsidise their costs from the
Leaving Care Grant to provide an incentive to work.
Leaving care monies
3.41 Money for leaving care services, for the most part is included in the
arrangements for funding mainstream children’s services. However the
DfES set up the UASC Leaving Care Grant in 2004, to help towards the
costs of supporting UASC care leavers. The grant is aimed at those
Local Authorities in England supporting the highest numbers of UASC
care leavers.
3.42 Grant arrangements for leaving care should not influence or determine
any individual’s pathway plan. This is dictated by the ‘needs assessment’
and the pathway plan must be designed specifically for that person.
However the young person and their social worker or personal adviser
need to understand constraints on a local authority’s funding in order to
make realistic plans for young people’s financial support
3.43 In pathway planning for former relevant children the Local Authority will
have extensive duties to provide a range of on-going support and
assistance to this group of young people. In particular there are duties to
provide a personal adviser; to provide a pathway plan and to stay in
touch with the youngster up to the age of 21 or longer if the young
person remains in an approved programme of education or training.
Former relevant children in full time education or training also have a
specific entitlement to Local Authority support with their living costs
during vacations from education or training.
3.44 Former relevant children are entitled to the same services as other
young adults. For example, former relevant children will be able to claim
mainstream benefits if necessary or if they still have an ongoing asylum
case, the Local Authority will be able to claim a weekly amount payable
by NASS (see Draft NASS Policy Bulletin 29).
3.45 Children Act 1989, and Children (Leaving Care) Act 2000, duties are
ended when a young person leaves the UK to take up residence in
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Section 3
another country. Depending on the young person’s immigration status,
the Nationality Immigration and Asylum Act 2002, Section 54 and
schedule 3 can end a Local Authority’s duty and power to provide
leaving care services if the young person is no longer lawfully allowed to
remain in the UK
. (See Section 54 and Schedule 3 of the Nationality
Immigration and Asylum Act 2002 - Guidance to Local Authorities and
2.5 above.)
3.46 There are three reasons why there may be misunderstandings about the
relationship between continuing entitlement to care leaving support and
a young person’s immigration status (see 2.5 above).
• The first is in ensuring the point where the young person becomes
‘appeal rights exhausted’ (ARE) is recognised by the Local Authority.
This will depend on good communication between IND and the Local
Authority.
• The second is in deciding the point at which entitlement to leaving care
support ends. This may be at the point when removals directions have
been served and not complied with. It may also be when someone is
found to be in the UK unlawfully, which may be when they become
‘ARE’. It is expected that IND plan to issue further guidance to assist
Local Authorities making these decisions.
• Finally the Local Authority needs to consider Human Rights legislation
(ECHR) to see if ending support would breach the young person’s
rights. Some breaches can be justified in particular circumstances.
IND has to consider this question in relation to other adult asylum
seekers. Decisions under ECHR must always be made on the
individual circumstances. This makes guidance difficult to develop, but
as case law becomes established the factors will be easier to identify.
3.47 It is strongly recommended that the social worker or personal adviser
develop contingency plans to deal with changing sources of funding.
They will need to consider when it is best to help the young person plan
for a switch from support provided by UK based track to preparing for
return to their country of origin, so as to avoid the prospect of a young
person remaining in the UK with no legitimate source of support.
Promoting and maintaining family Contact
3.48 It is essential that social workers and personal advisers help UASC to
keep or develop contacts with their families and communities. Advice is
available from Refugee Community Organisations, the Red Cross, the
Refugee Council and other voluntary sector agencies. Contact is
important because,
• Understanding a young person’s heritage is a key factor in the
transition to adulthood.
October 2005
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Section 3
• Carers valuing the background of UASC is vital in building the self
confidence necessary for a successful transition to adulthood.
• Understanding the background behind displacement from the
country of origin is important in the pathway planning process and if
necessary may help support a young person deal with trauma and
associated mental health issues.
• Contact with family or community can strengthen the support
available in dealing with discrimination and racism and help UASC
prepare for return to their country of origin.
3.49 Social workers and personal advisers should consider,
• Discussing with UASC whether they would want to use the services
of the Red Cross International Tracing and Message service to
attempt to trace family members.
• Providing books and other cultural materials in the young person’s
first
language.
• Providing opportunities for participation in cultural activities.
• Assisting the child to write or telephone to established contacts
either in the UK or overseas.
October 2005
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Section 4
4
EDUCATION, TRAINING, CAREERS AND BENEFITS
Introduction
4.1 In planning for education, training or careers for UASC, professionals
need to keep both care and immigration issues in mind. It is essential
that any young person receiving support from a local authority will be
helped to plan their self-development through education, training and/or
employment. It is also an assumption that all social workers and
personal advisers will attempt to develop plans that can help the young
person to thrive in the event that they return to their country of origin.
Personal Education Plan (PEP)
4.2 Increasingly UASC in England and Wales are ‘accommodated’ under
section 20 of the 1989 Children Act and are thus being treated as eligible
children, and once they have turned 18 as former relevant children.
Whilst they remain in school or college, like other looked after children,
they should have a specific Personal Education Plan (PEP). This Plan
sets education goals and indicates which professionals will be
responsible for helping the young person achieve these. The PEP
should be developed alongside the young person’s care or pathway
plan. It is the statutory duty of the local authority looked after children’s
services or leaving care service to ensure that one is produced in
partnership with the designated teacher for looked after children (or
equivalent college post).
The PEP provided by a social worker or
personal adviser can of course include training in combination with
education if that is in line with the young person’s needs and wishes.
4.3 In other rare cases, the assessment of the young person’s needs will
lead to support being offered under section 17 of the 1989 Children Act.
In these cases the young person will have been assessed as being more
capable of independence, and they will have agreed with this
assessment. It will still be necessary as part of the core assessment and
service planning for a child in need to identify development needs and
the resources that can help to achieve them. Some young people who
are supported in this way may wish to work (if they have Indefinite Leave
to Remain), or to claim benefits as part of their independence. The
Connexions service, Children’s Service Authority or relevant services
within the Children’s Trust can be particularly helpful and can provide a
personal adviser service to anyone who is under 19 and in this situation.
4.4 Planning for any UASC will therefore take place within a statutory
framework and will have to consider the special circumstances imposed
by the immigration status of the young person. Contingency planning
refers to setting out pathways to the same goals that may have to
operate in fundamentally different contexts (see 3.13 above).
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Section 4
Developing the PEP
4.5 While it may seem obvious to state that the PEP belongs to the young
person it is worth special consideration in work with UASC. They will be
required to make and understand far-reaching decisions in ways that
many other young people in the UK do not have to at an equivalent age.
Furthermore the decisions in one important sphere of their lives, the
immigration process, have complex consequences in other spheres. In
assessing wishes and feelings, social workers and personal advisers
need to be clear about the interaction between pathway planning and
immigration and asylum processes so that they are able to offer effective
help to young people. Great care will be needed to manage the levels of
uncertainty involved, without causing the young person to abandon their
education or career goals. It would, however, be a professional failing to
simply proceed as if there are no barriers for UASC in making long-term
education and career plans based on continuing residence in the UK.
Assessment Processes
4.6 The education needs of UASC will be identified through a core
assessment and the completion of an Assessment Progress Record
within the Integrated Children System (ICS) if the child is looked after.
Personal Education Plans must be drawn up at the earliest possible
opportunity and it is important to involve the relevant Local Authority
department and school as soon as possible.
Education and statutory rights
4.7 It is important for UASC to be given clear information about their
educational rights and entitlements as well as any restrictions that are
relevant to them in this key area so that young people may recognise the
opportunities that education can give them, depending on the various
outcomes of their asylum application.
4.8 Education, at least up to the age of 16, is a right and a requirement for
all children in the UK. However, it will not necessarily be possible to
guarantee a place in a particular school. A young person who will be
reaching the age of 16 at the point they enter the education system may
find that further education has more relevant opportunities than the
school sector.
4.9 Further Education is not a statutory right in the same sense as schooling
for 5 to 16 year olds. However Government is keen to ensure that young
people are engaged in purposeful activity while not at school or at work.
Most colleges have a wide range of available courses. The Learning and
Skills Council encourages colleges to be flexible and to take initiatives to
meet local demand for places and their admissions policies are generally
open. UASC supported by a local authority and UASC who are care
leavers supported either by a local authority or NASS are eligible to
access further education as a ‘home student’. Colleges may take failed
October 2005
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Section 4
asylum seekers on courses but they cannot fund these places from
public sources, see www.education-action.org
4.10 There are extensive barriers that limit access to Higher Education.
Universities are able to set their own entrance criteria. Young people will
have to meet the academic admission requirements, but additionally the
question of fees and student loans will also need to be considered. For
example UASC who are care leavers may be considered to be overseas
students and if so their fees will be higher and they will not be able to
access student loans. Local authorities should have policies about
access to higher education funding for care leavers. It would be unusual
for these to permit access to funding for UASC who are care leavers at
overseas student rates.
4.11 The limitation on UASC’s permanent right of residence in the UK needs
to be discussed frankly with their school as well as with local further or
higher education providers. It would be useful to develop agreements
and strategies to maximise the educational achievement given the other
limitations placed on UASC who are care leavers.
The Immigration Process
4.12 The following immigration considerations may affect PEP:
• The final outcome and its timing will dictate in which country the long
term aims of the plan will be realised. The length of leave to remain
should be taken into account when deciding on the type and length of
courses that can be undertaken.
• The immigration status varies over time and categories such as
‘asylum seeker’, ‘granted leave to remain’ or ‘no legal right to remain’
directly affect rights to benefits, education allowances, legal
employment and leaving care support (see 2.5 above).
• The duration and nature of stay in the UK can affect levels of course
fees or access to student loans.
Education and Returns
4.13 Contingency planning needs to go beyond the simply setting out of two
plans, one assuming permanency in the UK and another preparing for
return (see 3.13 above and 4.27 below). In addition to this,
• Careful thought should be given to the length of any course of study in
the UK, particularly those leading to qualifications.
• Courses based on modules that can be independently validated are
preferable.
• Assumptions cannot be made about the levels of fees payable i.e. the
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Section 4
home or overseas rate.
• Access to student loans is likely to be restricted.
• The long term aims need to be considered separately from the current
services provided, as the path may have to be delivered by routes lying
outside the UK.
The need for contingency in pathway planning
4.14 As outlined in the planning section the need for contingency planning is
particularly necessary when planning for education and careers; this will
have to be focused on long-term aims and the paths to achieve these.
4.15 Any looked after child, with as yet undecided immigration status must
have these the options relating to both the possibility of their remaining
in the UK or returning to their country of origin set out in their pathway
plan. A failure to confront this question and to find ways to overcome a
reluctance to discuss it might well deny a young person access to
realistic support at a point where it will be in the best interests to plan for
an educational pathway in their country of origin.
4.16 Where their status is still not settled at 18, part of the assessment of their
educational needs should include a strong focus on how long they are
likely to be able to remain in the UK, and what courses and skills would
be of most use to them in the event that they are returned in the near
future.
4.17 The most difficult cases to resolve may fall into the second category
described above (4.16). Here the social worker should work with
schools, colleges, the Connexions service, Children’s Service Authority
or relevant service within the Children’s Trust and the young people
themselves to come up with a range of realistic but high quality
education and training options.
Financing courses of study
UASC with entitlement to welfare benefits
4.18 Most UASC are given some form of leave at the point when a decision
has been made about their asylum application. In the event that they
have such leave or that applications to extend leave are not fully settled
they may be entitled to state benefits. The other criteria they must satisfy
relates to their care status, with eligible children denied benefit as their
maintenance will be the responsibility of the local authority caring for
them.
4.19 In the event that they are entitled to benefits and are in full time
education, it should be possible to ensure that benefits play a major part
in financing their study. This can continue until they are 19 or unless
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Section 4
and until they receive a final decision on their application to extend their
leave.
UASC without entitlement to welfare benefits
4.20 Some UASC who are care leavers turning 18 will not be eligible for
welfare benefits. This can happen because they are still awaiting a
decision on their application to remain, or they have not been granted a
form of leave to remain. More seriously it can also happen because they
have had an outright refusal i.e. no grant of leave and for whatever
reason have not lodged an appeal in time.
4.21 In the case of UASC who are care leavers aged 18 years and above
waiting for asylum decisions or appeal outcomes, they may be entitled to
NASS support and this should have been applied for and confirmed
before their 18th birthday. NASS will make a contribution, up to £140 per
week, to funding the services set out in the pathway plan for UASC who
become ‘former relevant children’.
4.22 If UASC are not care leavers, they may face dispersal. Although this is
increasing unlikely since the ‘Hillingdon judgment’ it needs to be
reflected in the ‘child in need’ plan.
The Learning Skills Council (LSC)
4.23 LSC guidance makes it clear that asylum seekers are not automatically
eligible for LSC funding, though the LSC will consider ‘home fee’ status
for those asylum seekers in receipt of income based benefits, or those
being assisted under the 1999 Immigration and Asylum Act or the 1989
Children Act, Community Care legislation, or receiving financial
assistance from NASS. English for speakers of other languages (ESOL)
and basic skills provision is already free to all learners legally present in
the UK.
4.24 LSC will also consider any UASC aged 16 - 18 who are receiving
support from social services as eligible for funding.
Leaving Care Support
4.25 Leaving Care Teams may provide assistance to those UASC who have
some form of leave to be in the UK, with education costs in agreed
circumstances and in lieu of other sources of funding. UASC who are
former relevant children will be eligible for this support.
4.26 Education Maintenance Allowances (EMAs) of around £30 pw available
to looked after children can only be accessed by UASC who have
Indefinite Leave to Remain. Those with other forms of leave are
specifically excluded.
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Section 4
Higher Education Support
4.27 Local Authorities, generally speaking only support asylum seekers who
are hoping to go to University if they have resolved immigration status.
This is because those without a positive decision from the Home Office
will be required to pay university fees at the overseas student rate as
well as being ineligible for a student loan. UASC who have been granted
either Humanitarian Protection or Discretionary Leave may qualify as a
‘home student’ if they have been ‘ordinarily resident’ in the UK since the
leave was granted but will not be entitled to student support unless the
length of their ‘ordinary residence’ is 3 years or more. UASC who have
been granted Indefinite Leave to Remain are likely to be eligible for both
‘home student’ fees and student support if they have been ‘ordinarily
resident’ in the UK since the granting of the leave. Local Authorities
should think very carefully about the inclusion of university places as part
of a pathway plan, as there is a danger that courses may not be finished
at the point where they will be required to leave the UK (see 4.13
above).
Changes in immigration status and benefit entitlement
4.28 The ways in which the status of the young person changes throughout
the asylum process is referred to throughout this guidance. A brief
summary is included here to help social workers and personal advisers
consider the changes in the context of education, training and
employment.
• Children who are in the care system are not entitled to state
benefits. In addition any 16 or 17 year old would be denied access
to the benefits system until they have some form of leave to remain.
However, even with leave to remain, they may be denied benefit
between the ages of 16 and 18 if they are eligible care leavers.
• On turning 18 there are a number of sources of funding for the
services set out in the pathway plan whilst the young person
remains legally in the UK (see table at 3.40).
• If leave has been granted or an extension of leave is under
consideration then benefits can be accessed unless there has been
a final negative outcome. After 19, full time study can limit rights to
benefit where they exist.
• On turning 18 if there are outstanding applications or appeals about
asylum (rather than extension of leave) and there is no current
leave to remain, a weekly amount may be claimed by the Local
Authority from NASS. In the case of UASC supported under section
17 of the 1989 Children Act a transfer to NASS and subsequent
dispersal may occur unless there are special circumstances.
• In the event that neither of the above applies and the young person
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Section 4
is a former relevant care leaver, funding may be provided through
the Local Authority leaving care budget. Local Authority duties and
powers are however limited by section 54 and schedule 3 of the
Nationality, Immigration and Asylum Act 2002. Eligibility for the
DfES UASC Leaving Care Grant is based on a UASC care leaver
being a former relevant child. It is not affected, nor does it affect
entitlement to any other funding. Rights to access education may
also be affected. Further education may be arranged with a local
college and it may be possible to cover fees from LSC or other
education budgets.
• Similarly careers training may be organised through Job Centre
Plus.
• The right to work is dependent on whether a UASC or a UASC who
is a care leaver is still considered to be an asylum seeker. Whilst
UASC asylum claims remain undetermined they have no right to
work.
• Work should not be arranged in the event that a young person does
not have a National Insurance Number (NINO). They are likely to be
eligible for this on being granted some form of leave to remain in UK
(see 4.32 and 4.33 below).
• Access to higher education is by its nature more difficult for young
people whose immigration status is undecided post 18. Unless the
young person has ILR or their grant of temporary leave extends
beyond the end of the course there is no guarantee that they will be
able to finish a course of study.
• Fees and student loans depend on immigration status. For example
someone who is in the UK unlawfully should not access them.
• Eligibility to be considered a ‘home student’ rather than an
‘overseas student’ depends on the duration of stay in the UK (3
years minimum) and its purpose. It should not have been mainly for
the purpose of obtaining an education. Again the status of ‘home
student’ may be affected by a final negative outcome in the asylum
process.
Employment, National Insurance Numbers (NINO) and
registration
4.29 UASC have no automatic right to work in the UK, even where this is part
of their pathway plan. However professionals need to bear in mind that
at the point where the young person has a grant of leave to remain in the
UK, the restrictions on asylum seekers do not apply while the leave
continues.
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Section 4
4.30 Professionals also need to be aware that some young people need to
work to accrue money for themselves and their families. In some cases
young people work unlawfully often in dangerous and unregulated
employment. Ensuring that young people who choose to work do so
legally and safely is important, even though it is difficult to monitor in
practice. Other issues associated with working include a Local Authority
expectation that they will contribute to their living costs.
4.31 Leave to remain only confers a temporary right to work or, if appropriate,
to claim benefits. The right may be extended if further leave is granted. It
continues to exist during any period when an application for an extension
of leave is being decided, including any appeal associated with a refusal
to extend.
4.32 Although UASC are entitled to a NINO at the age of 16 (subject to 4.23
above) this will not be issued automatically and it is recommended that
personal advisers and social workers develop strategies to help young
people apply for and get their NINO as soon as they can. Applications
can be made up to 3 months before the child’s 16th birthday.
4.33 It may be useful to register the presence of a UASC in the UK
immediately by opening correspondence with Job Centre Plus. It should
be considered as an action from the initial or core assessment. However
it will only be when they receive the decision and a grant of leave that
they are entitled to have a NINO issued. In this matter as in all other
contacts with Job Centre Plus original documents will be required. The
Agency usually asks for original documents for this purpose. Particular
care needs to be taken of the letter setting out the grant of leave and the
duplicate sent to their responsible authority.
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Section 5
5
PLACEMENTS AND ACCOMMODATION
5.1 The terms ‘placement’ and ‘accommodation’ are sometimes
interchangeable. In this section ‘placement’ will refer to foster care and
residential homes for children. Accommodation will be used when UASC
are living semi-independently.
Individual placements and overall service plans.
5.2 UASC should be perceived as children first, though within their pathway
plan the need to take full account of their immigration status is of Key
importance. The framework for supporting UASC is mainstream
childcare legislation. The task in working with UASC is how best to
deliver the 5 identified outcomes set out in
Every Child Matters. All
young people should,
• Be healthy and well
• Be safe and able to look after themselves
• Have the skills needed to manage adult life
• Be active and fulfilled citizens
• Have the hope of economic success and the ability to fulfill their
potential
In many ways the needs of UASC are similar to non-asylum seeking
children and they are likely to need the same opportunities to develop
their potential as any other child. However the uncertainty surrounding
any outstanding application to remain in this country may influence the
context within which social workers seek to provide these opportunities.
5.3 The assessed needs of any looked after or former relevant child should
be central to their placement or accommodation. In order to reflect any
changes in identified levels of support these identified needs should be
adjusted as necessary during care plan and pathway plan reviews as
appropriate. The pathway plan review therefore needs clear information
on the asylum and immigration status of the young person as an
important factor in all the other aspects of planning. The role of the
independent reviewing officer has great significance here and
appropriate training should be made available to them.
5.4 There has been considerable debate about the types of placements and
accommodation that should be provided or made available for UASC
following guidance that suggests that UASC will invariably need to be
provided with accommodation under section 20 of the 1989 Children Act,
rather than being provided with section 17 support (LAC (2003) 13). It is
important to remember that the essential principle regarding the
placement and accommodation of provision for children must be based
on an assessment of their individual needs. Section 20 of the 1989
Children Act does not prescribe any particular type or duration of
placement although placement of a child under the age of 16 in
unregulated accommodation could represent a breach of the Care
Standards Act 2000. The pathway plan will need to be balanced
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Section 5
between a young person’s need for a stable base for the period that they
are likely to be permitted to remain in the UK and the development of the
independence skills they will need if they cannot remain. Although all
plans will need to be specific the timescale for achieving some outcomes
may be quite short. Immigration status should not restrict a young
person’s moves toward independence if that is the best way of meeting
their needs.
5.5 The varying availability of resources may call for a flexible approach to
placements and accommodation from time to time. Departures from
policy and accepted practice must be based on the assessment of need,
consistent with the interests of the young person and be subject to on-
going review. In addition to the needs of UASC, factors that must always
be considered when making placements and provision for
accommodation are,
• The quality of the placement
• The accessibility of local services
• The availability of quality legal representation
• Community cohesion
5.6 Assessment is on going and while it is obviously preferable that high
level need be detected early in the process, such need can in fact
emerge at any point throughout the process. There are various ways of
delivering extra support, e.g. a switch to a specialist placement, or to
increased outreach support. It is recommended that social workers and
personal advisers should make themselves aware of organisations and
resources that can step up support for young people if following a
placement in accommodation where they are expected to be self-
managing a greater need for protection and support is discovered.
The Pattern of Need in the UASC Population
5.7 This guidance is based on the assumption that the majority of UASC do
not present in ways that are typical of the general UK care population.
As explained above this does not mean that they have different long
term needs regarding health, development and education, but it does
mean that care plans and pathway plans should engage with these
young people based on an individual assessment of their own specific
needs and circumstances. Some UASC will have experienced extremely
traumatic and violent events either directly or as witnesses, whereas
others will have taken on board responsibilities, and in consequence
developed self-reliance, beyond the experience of UK born children in
the looked after system. In assessing the needs of these young people
and planning to meet them it will be important to take account of these
differing factors. It remains essential that each assessment be based on
individual needs.
5.8 It is also clear that all UASC are undergoing a process of seeking
permission to stay in the UK. They will need help to recognise and
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Section 5
respond to the different ‘immigration milestones’ that they will encounter
and this needs to be considered in the planning and review processes.
The pathway plan review should consider if the placement is still best
placed to meet the young person’s future needs. Time frames for what
can be achieved in the UK are important.
The need for Flexibility in Planning
5.9 The ADSS recommends a greater flexibility of approach towards
placements and accommodation that takes account of the young
person’s changing circumstances and the informed choices that they
make. Consideration needs to be given to the short time frame imposed
by asylum decisions, particularly regarding planning as the young person
approaches their 18th birthday. The critical point, which will impact on
UASC, is not their age but its association with the end of leave and,
where relevant, the switch within IND from specialist consideration for
children to adult immigration processes.
5.10
Throughout the young person’s placement or provision of
accommodation particular attention should be given to identifying any
existing or emerging needs and risks that might imply the need for a
change of provision. At any stage of the process consideration could be
given to a more structured placement if appropriate, though it would be
good practice to involve the young person in assessing the implications
of any change of placement on the development of their independence.
The decisions made about an asylum application and leave granted
have no automatic implications for changing the placement of any
UASC. However as the outcome of the asylum process becomes clearer
the pathway plan should take account of it.
5.11 The implicit goal of the contingency planning recommended in this
guidance is to prepare UASC either for integration in the UK or to give
them the best chance to thrive in their country of origin. The advantages
and disadvantages of any placement or accommodation need to be
considered in this light. For example the opportunity to remain with a
foster family may need to be balanced against the need to speedily
achieve independence. All planning must take account of the
requirement to protect and safeguard a group of children and young
people who are particularly vulnerable.
Types of Accommodation and Placements.
5.12 Assessment is the key to placements. Good practice is to ensure that
lone children are not placed in isolation and that all UASC can access
support from their own communities. Clearly a balance will be needed to
secure needs led placements where young people have special needs.
Residential Care
5.13 Subject to assessment residential care units may be an appropriate
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Section 5
placement for some UASC. Residential units can provide a stable
environment from which young people can orientate into UK society. In
practice residential units are currently more likely to be used to deliver
particular specialist services. They may be an appropriate setting for
those young people who are particularly vulnerable and require
specialist services or protection.
Semi-independent living arrangements.
5.14 It is recommended that where Hostels and Foyers are used, thought
should be given to their primary purpose. In general they should have
clear programmes to develop their residents’ independence skills and
clear arrangements to move them on appropriately. Such provision
should be kept under constant review and services monitored to ensure
that they are delivering the planned outcomes for the young person, as
specified in their pathway plan.
5.15 In practice the most common type of accommodation for the over 16
year old UASC is shared housing, single flats or supported lodgings with
support from outreach staff. If planned within the context of community
cohesion this form of accommodation usually facilitates integration into
the wider community and builds on existing levels of independence.
Even where the young person has on-going support needs, shared
housing may be the best option and again a flexible approach to the type
of accommodation may be appropriate. However this may not be an
appropriate form of provision for some UASC.
Foster Placements.
5.16 Placement within a family setting is likely to be the most appropriate
setting for many UASC and would be required for UASC under 16 years
old unless there were exceptional circumstances, usually where an
appropriate adult carer is available. In those instances where an adult
offers to provide care to a UASC the same procedures that would apply
to children who are not UASC should be followed and the Local Authority
should always assess the suitability of the prospective carer using the
same processes that would be followed for any child placed with family
or friends.
5.17 Where possible best practice would place children in foster families from
within their own communities. Care needs to be exercised in considering
whether the placement inadvertently mirrors any divisions between
different groups in the country of origin and how it sits with the wishes
and feelings of a young person who may wish to live in a predominantly
English speaking family. Foster carers need to understand that
placements may be short term, as the UASC may not be allowed to
remain in the UK. In these instances they may need to help the UASC
prepare for return to their country of origin. They may also need support,
guidance and supervision to help them deal with their own feelings
concerning the return of a UASC that they have cared for. Some older
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Section 5
UASC may have no need to bond with another family even though they
are separated from their own family and in some instances their level of
self-reliance would indicate that another type of placement is more
appropriate. As with all other looked after children, the placement of
UASC turning 16 in foster care turning 16 are governed by the statutory
review process and changes should be made through this process.
Housing Needs as Young Adults.
5.18 In common with other young care leavers UASC will become former
relevant children on turning 18. Co-ordinating the provision of suitable
accommodation will be an important part of their pathway plan. However
unlike other former relevant children it should not be assumed that
UASC who are care leavers will gain a permanent right of residence in
the UK.
5.19 Some UASC will have a permanent right to remain through Indefinite
Leave to Remain or from more than 4 years Exceptional Leave to
Remain, (though ELR is no longer granted). In these cases young
people should be treated in the same way as other young care leavers
and helped to find settled accommodation as soon as they are able to
sustain it. In many cases local authorities will seek to help young people
into social housing.
5.20 In the case of other forms of leave, Humanitarian Protection or
Discretionary Leave, the right to remain is temporary and eligibility for
social housing will only be short term in line with the period of leave. In
the event that the leave ends eligibility for social housing will also end.
5.21 There are distinct groups of young people with different levels of
eligibility for support. If the young person is under 18 it may be possible
to obtain additional funding towards the cost of their care from the Home
Office. If they have turned 18 securing funding will be significantly
harder. Former relevant children, where eligible for support, may be able
to receive services whilst they remain in a programme of education or
training.
At the time of preparing this document there is a lack of clarity
as to whether Local Authorities are legally able to support former
relevant children who have exhausted all avenues of appeal but have
not reached the point where they have failed to comply with removal
directions (see 2.5 above). The groups are,
• Former relevant children awaiting the outcome of an asylum
application or appeal will be assisted by the social services
department of the Local Authority with financial support from NASS
provided that they are eligible for support under section 55 of the
Nationality, Immigration and Asylum Act 2000 and a funding
application was made 8 weeks before the young persons 18th
birthday.
• UASC who are care leavers and awaiting the outcome of an asylum
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Section 5
application or appeal but who are not former relevant children will be
supported by NASS and will not be eligible for social housing or
benefits.
• Those given Indefinite Leave to remain or Humanitarian Protection
will receive assistance from the Local Authority and possibly Job
Centre Plus or relevant education establishments.
• Those given Discretionary Leave of limited duration and have applied
within the permitted timescale to have it extended will receive
assistance from the Local Authority and possibly Job Centre Plus or
relevant education establishments, bearing in mind the time limits.
• Those who have received a negative decision but are not able to be
returned, check with IND about the possibility of assistance under
Section 4 of the 1999 Immigration and Asylum Act. They will not be
eligible for social housing.
• Those who have received a final negative decision and have yet to
receive Removal Directions. Under leaving Care legislation are
eligible for support, though no eligibility for social housing. There will
be a funding gap as this is not grant reclaimable (see reference
in
italics immediately above).
• Those whose Leave to Remain has lapsed and no extension or those
otherwise in the UK unlawfully will not be eligible for support from
social services.
Local Authority response to former relevant UASC
5.22 In practice there has been a wide range of approaches to meeting the
accommodation needs of former relevant young people who entered the
UK as UASC. In some local authorities social housing has been offered
through the housing waiting list in line with leaving care policies. In
others housing authorities are unwilling to engage with former UASC at
all.
5.23 The ‘Hillingdon Judgment’ (see 3.3 above) has raised the possibility of
young people, formerly cared for under section 17 of the 1989 Children
Act, returning to their Local Authority and claiming leaving care services
if the support they received, or should have received, as UASC was
under section 20 of the 1989 Children Act. The court confirmed that this
category of young people would fall within the priority need groups in the
homelessness legislation. However, in practice this would have no real
effect in an individual case unless the young person was also
unintentionally homeless (and eligible for assistance). The Office of the
Deputy Prime Minister is clear in the expectation that homelessness
should not be an outcome for young people leaving the care system.
The homelessness legislation is a safety net for people who find
themselves in a housing crisis through no fault of their own and should
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Section 5
not be used by local authorities as a mechanism for meeting the planned
housing needs of people who are being assisted under a managed
programme of support.
5.24 There are several legal bases for the accommodation provided to older
UASC and young adults. The social worker or personal adviser needs
to consider their eligibility and entitlements as well as the degree of
security of tenure that a particular form of tenancy or licence may offer.
•
Secure Tenancy (local housing authorities): Local authority
housing, allocated through its housing register, will generally be let
on a secure tenancy. This offers long-term security of tenure for as
long as the tenant keeps to the terms of the tenancy agreement.
•
Assured Tenancy (housing associations and private
landlords): Offers similar long-term security of tenure to a secure
tenancy provided by a local authority (see above) in that as long as
the tenant does not break the terms of the Tenancy Agreement s/he
can continue to live in the property. Housing allocated through the
local authority's housing register may include nominations to
housing association property, usually let on assured tenancies.
However, some housing association tenancies may initially be
assured shorthold tenancies (see below) known as starter tenancies
•
Assured Shorthold Tenancy (housing associations and private
landlords): An assured shorthold tenancy may be for a fixed period
of time, and, as a minimum offers security of tenure for at least 6
months. It may not provide long-term security of tenure because the
landlord can seek repossession by giving 2 months notice after 6
months or the end of the agreed fixed term. Some housing
association tenancies may initially be assured shorthold tenancies
where they are granted on a probationary basis (started tenancies)
or on a temporary basis (as supported housing).
•
Non Secure Tenancy (local housing authorities): Local housing
authority accommodation is let under non-secure tenancies in
specified circumstances, including when an authority sub lets
accommodation they are leasing from another landlord, e.g. under
schemes known as ‘Private Sector Leasing’. Under these schemes,
the local authority is the immediate landlord of the tenant. Non-
secure tenancies cannot offer long-term security of tenure (and are
usually used to provide temporary accommodation). The local
authority can bring such a non-secure tenancy to an end by giving
reasonable notice (usually 4 weeks) and of course, such ‘PSL’
tenancies must end when the head lease between the authority and
the landlord expires.
•
Licence: (only applies where the conditions for a tenancy do not
exist e.g. in a hostel or hotel that offers non-self contained
accommodation): Right of use but no tenancy rights. This is the
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Section 5
least secure option and provides very little security. Licences can
generally be withdrawn with reasonable notice (which may be as
little as a few days). However, it is possible to draw up conditions to
the Licence but this does not extend as far as the rights provided for
in the alternative options.
Funding
5.25 The social worker or personal adviser will need to be clear about how
the accommodation will be paid for and how long the funding will last. A
list of options is given below:
Welfare Benefits
• Indefinite Leave to Remain or Exceptional Leave to Remain for 4 years
or more should bring entitlement to housing benefit as part of general
benefits entitlement.
• Discretionary Leave or Humanitarian Protection brings entitlement to
housing benefit for a time but rules out other forms of support such as
NASS (see below). Having the appropriate original documents to
provide proof of leave and clarity about the legal entitlement will prove
important.
• If a young person applies in time to extend a period of temporary leave
then benefit entitlement continues pending a decision and the outcome
of any appeal. Again documentary proof is important. Job Centre Plus
offices are unlikely to accept a solicitor’s letter claiming that an
application has been lodged on time.
• It will be a matter of local policy whether the needs of UASC and former
relevant UASC are included in ‘Supporting People’ arrangements. In
any event, those under 16 are not eligible for support under the
Supporting People programme nor can the programme be used to pay
for a service provided as a statutory entitlement.
National Asylum Support Service
5.26 UASC who are care leavers will only be entitled to NASS support if they
have an outstanding asylum claim or appeal and no access to benefits.
The Local Authority can currently claim up to £140 per week from NASS
provided that the entitlement is properly established.
5.27 The social worker or personal adviser will also need to clarify the local
position in respect of funding accommodation for this group from local
authority funds. Given the limited funding available, where a Supporting
People Team takes responsibility for housing one of these young people
it would normally expect reimbursement for their service from the
Leaving Care Team.
5.28 In these circumstances the ADSS recommends that the pathway plan
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Section 5
should not include accessing settled long-term accommodation unless a
more permanent right to remain has been granted. It follows that a
suitable form of temporary accommodation should be commissioned for
most UASC who are care leavers. It would be good practice to develop a
joint protocol with relevant housing authorities and the local housing
benefit office to deal with these cases.
The Nationality Immigration and Asylum Act (NIAA) 2002
5.29 Depending on the immigration status of the young person Section 54 and
Schedule 3 of the NIAA 2002 impacts on eligibility for leaving care
support as well as a range of other benefits and rights. Home Office
legal advice is that most former UASC will lose their automatic right to
leaving care support as soon as they become ‘appeal rights exhausted’.
In practice for most former UASC this occurs when their application to
extend their discretionary leave has had a negative decision and any
appeal against that decision has upheld the decision.
5.30 The reasoning behind the Home Office legal advice is that asylum claims
by minors do not meet the definition of ‘asylum seeker’ set out in the
Immigration and Asylum Act 1999. In the second place because most
UASC apply in country the fact that they have thus ‘entered the UK
unlawfully’ will also impact on their right to leaving care support.
However those UASC who apply at ports and who do not receive a
decision until after they are 18 would continue to be supported according
to this advice.
5.31 Local authority legal advice may differ from the Home Office opinion and
before ending support for Schedule 3 reasons a Local Authority would
have to consider if by doing so they would breach a young person’s
human rights. The Home Office is currently considering whether to issue
statutory guidance that could help clarify matters both by setting out the
issues and by strongly advising Local Authorities on what they are
expected to do. The question is being addressed in a working party that
includes local authorities and NGOs.
Understanding the Commissioning Strategy.
5.32 Given that numbers of new applications are falling, there is a tendency
for specialist commissioning strategies to become less frequent and in
consequence UASC are therefore made to fit placements and
accommodation provision really intended for the rest of the UK care
population. This practice should be challenged as placements and
accommodation should be based on the individuals assessed need.
Increasingly the ADSS and the Home Office have been recommending
that individual Local Authorities should look for regional partnerships with
each other that will allow the specialist knowledge of UASC needs to be
used. If numbers of UASC continue to fall at current rates then the
numbers of authorities in any partnership will have to increase to allow
sufficient volume and duration of placements and accommodation.
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Section 5
Failure to do this will make the contracts less efficient.
5.33 The manager’s task in developing a commissioning strategy for
placements and accommodation is,
• To identify the different levels of support and need that must be
provided for. This should also cover those with special needs and
young women with children.
• To understand how the amount of accommodation in each level will
change over time.
• Identify best practice in service provision at each level.
• To deploy identified resources to procure sufficient amounts of the
right type of support at the right price.
This should provide a sound basis for the social workers and personal
advisers to identify appropriate placements or accommodation for the
young people they work with. It is not the same as matching an
individual to a particular placement or accommodation, ensuring the best
fit through selection and adjustment of support services, which remains
the responsibility of the young person’s social worker or personal
adviser.
5.34 For UASC the Commissioning Strategy must take account of the
increasing frequency with which UASC are likely to return to their
country of origin. Currently most UASC are given leave until their 18th
birthday, and usually apply to extend their leave. Whereas in the past
there could be delay in settling such an application, IND now has an
Active Review Policy and Process, significantly shortening the wait for a
decision. Also in development is a policy that may return UASC before
their 18th birthday. Those who only qualify for Discretionary Leave on the
sole basis of age will be given a short period of leave e.g. 1 year or until
their 18th birthday whichever is shorter. The expiry of leave will trigger an
active review and as part of this the UASC will be considered for return
to suitable arrangements in their country of origin.
5.35 In all cases the Local Authorities commissioning strategy needs to
predict the general effects on volume and occupancy levels of
accommodation appropriate for former relevant UASC, without pre-
judging individual cases. The nature of additional support needs to be
reviewed for these children who are facing major change and likely
disappointment. The skills package of support workers needs to be
suitable to engage in a transfer process. In some cases links with the
reception arrangements in the country of origin may be indicated.
Sources of Placements
5.36 Appropriate accommodation could be provided by the public sector,
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Section 5
voluntary sector, Registered Social Landlords (RSLs) and the private
sector. A commissioning strategy could make use of the strengths of
each of those sectors in a cost-effective way that does not detract from
service quality e.g. Landlord Accreditation Schemes. Such a strategy
should provide for a range of units providing differing levels of support to
reflect differing needs and the growing independence of young people.
Joint commissioning on a regional basis – for example, through Asylum
Seeker Services Consortia – would encourage stability and flexibility
while supporting cost effectiveness. It should be possible to develop and
retain the necessary specialist skills set.
5.37 While the statutory responsibility for individual children and their
accommodation remains a duty of the individual Local Authority it may
be necessary to place young people out of the area. The Local Authority
must develop strategies for determining appropriate areas where there is
access to statutory service provision, for example schools. It also needs
to take account of the objectives of the broader regional housing
strategies e.g. regeneration areas. In July 2005 the North West
Consortium (East) launched a pilot strategy called the Safe Case
Transfer project. This pilot is due to end in March 2006. As well as best
value the project has secured an assurance with the ADSS that
ensures that no UASC will be placed
in
their region without prior
consent of the host authority. This approach to cross boundary
placements is an example of best practice based on voluntary inter-
authority agreements.
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Section 6
6 RETURNS
In this section the terms ‘return’ and ‘removal’ are used in the following way.
• ‘Return’ signifies a process whereby the asylum seeker has abandoned their
claim or appeal in order to leave the UK.
• In the case of a voluntary return a negotiation will have take place with
International Organisation of Migration to provide some assistance for the
returnee in the other country.
• The term ‘removal’ applies to someone who remains in the UK until the
Immigration Service takes removal action to send them back to their country
of origin.
6.1 Each young person will experience return in their own way, though it is
likely to be a frightening and uncertain time for any UASC or former
UASC who is leaving the UK. It is equally likely that social workers will
be unable to make return a satisfactory outcome in the eyes of a young
person who has no choice other than to leave the UK.
The key IND decisions that affect a young person’s future
6.2 This is a complex area. Difficulties faced by UASC in accessing sound
legal advice and asylum determination processes that are not child
centred can compound these complexities. The processes are not
simple; however the key decisions are:
• The asylum decision, and although some young people do receive
Indefinite Leave to Remain the decision to refuse asylum is usually
accompanied with a fixed (short) period of leave to remain in the UK.
The latter is subject to review by IND. The outcomes set as part of the
pathway planning process will need to be reviewed in the light of this
time frame.
• The IND active review decision will determine the duration of further
leave if any is granted to the young person. It will also deal with any
other outstanding applications or appeals.
• The lodging of appeals against a refusal in either decision also imposes
a time frame, which can affect the support plans for young people,
particularly for UASC who are care leavers aged 18 or over.
• Appeals are usually heard while the unsuccessful applicant remains in
the UK – ‘suspensive’ appeals. Some will be heard after the person has
been removed – ‘non-suspensive appeals’. The criteria include the
country of origin of the applicant and the duration of leave they have
received if any (one year or less). At the time of writing the list of ‘non-
suspensive appeal’ countries is as follows, Albania, Bangladesh,
Bulgaria, Jamaica, Macedonia, Moldova, Romania, Serbia and
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Section 6
Montenegro and Sri Lanka.
The Contingency Planning tasks at the returns/removals stage
6.3 The aim of contingency planning is to best equip the young person for
various outcomes of decisions, which are outside the control of the
professional network. This planning process continues to be managed
through the young person’s pathway plan. Frequently by the later
stages of the case there is an indication as to the most likely outcome. In
continuing to help the young person the task of the professional network
becomes one of planning how their needs will best be met given that
outcome.
6.4 In planning for these young people social workers may experience a
tension between permanency planning and the potential for return.
However as part of the contingency planning process social workers will
need to introduce and keep alive the possibility of return.
6.5 The decision about which asylum appeals and applications that a young
person will make rests ultimately with the individual and their legal
representative. Many UASC find it difficult to secure sound legal advice.
Social workers cannot give legal advice but they should encourage and
enable young people to maintain contact with their legal representative
and ensure that their claim is progressing and any appeals are made
within the legally prescribed time limits. The Refugee Council or
Community Legal Services may be able to offer advice to social workers
seeking legal representation for UASC and the Refugee Legal Centre
and the Immigration Advisory Service provide free legal advice.
6.6 As well as being aware of the processes and the timetable for decisions,
professionals may find it helpful to be familiar with decisions in a
statistical sense. IND decisions are published at
www.homeoffice.gov.uk
Trends and statistics may provide a useful guide, but it is important to
bear in mind that they change and become outdated. Although decisions
on asylum applications are always made on the individual circumstances
of the applicant, patterns sometimes emerge in relation to particular
countries; see www.biduk.org and
www.aviddetention.org.uk for relevant
information. Social workers may suggest that the young person
discusses the likelihood of receiving leave to remain with their legal
representative.
6.7 Some young people will not have been granted leave and will not have
appealed this refusal of their asylum application. They are in fact in the
UK unlawfully. If you encounter such a young person it is strongly
recommended that they should be encouraged to contact IND via their
legal representative. Failure to do so can also have serious implications
for them as they turn 18.
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Section 6
The Asylum and Immigration Processes
6.8 The most common types of applications are the asylum application and
subsequent appeal, or appeals where an application to extend a period
of leave has been refused. However there are also other types of
application and it is important to understand something about them.
These types of application are known in the Home Office as ‘general
applications’ and with UASC take the form of an application to extend a
period of discretionary leave.
The Asylum Application
6.9 IND aims to give a decision on an asylum application within 2 months.
As well as determining whether the claim meets the threshold for asylum
status, the process will also consider whether humanitarian protection
should be offered on human rights grounds.
6.10 UASC who apply very close to their 18th birthday may not follow the
above process within the 2 months timetable. In these cases decisions
and appeals will be deferred until the young person achieves adult
status. It is worth noting that in these cases the UASC turning 18 may
not qualify as a “former relevant child”, due to the 13-week rule.
Depending on their care status they may be ‘qualifying children’, and
eligible for advice, assistance and befriending under S24 of the Children
Act.
6.11 Negative decisions on UASC applications are usually accompanied by a
grant of discretionary leave. The duration varies according to the age
and/or nationality of the applicant. Some UASC granted leave have not
appealed against the rejection of their claim for asylum. They have
waited instead to make a fresh application to extend their leave later in
the process. Where young people do have a right of appeal social
workers should encourage them to discuss this with their legal
representative.
6.12 The question of whether or not the young person can appeal is
dependent on other important factors.
• An appeal must be made within 10 days of the decision notice.
• The length of leave granted affects the right of appeal. One year or
less confers no automatic right of appeal.
6.13 If a UASC does make an appeal against the rejection of the asylum
claim, immigration judges from the Lord Chancellors Department
(Asylum and Immigration Tribunal) will hear it. The target for appeal
outcomes is 4 months. In some cases there is a right to have this
reviewed by the Tribunal and possibly by a judge in chambers.
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Section 6
General Applications
6.14 If a UASC has been granted a period of Discretionary Leave (or
Humanitarian Protection) they may make an application to extend it. In
practice the application may review the grounds for asylum or
humanitarian protection and add additional factors not covered in the
original (rejected) application. In considering the grounds for extending
leave IND may decide that they amount to a fresh asylum application.
This has implications for how the application will be dealt with.
6.15 The Active Review Unit will consider general applications from UASC
and former UASC.
6.16 Rejections of applications to extend leave can be made the subject of an
appeal, in the same way as the rejection of an asylum application.
6.17 Young people who have leave, or are applying to extend leave or are
appealing a decision not to extend are entitled to state benefit pending
the decision or appeal outcome that will end their leave. Social workers
should encourage young people to take up these benefits. It is important
to keep all original letters from IND particularly those which inform the
young person that they have been granted Discretionary Leave or
confirm receipt of applications for extension of leave.
Returns and Under 18’s
6.18 The UK Government has begun to consider the return of UASC who are
under 18 years old. This raises a whole set of welfare issues and should
this practice evolve, separate and detailed guidance, compiled by a
multi-agency forum, will be required.
6.19 It is likely in future that periods of leave granted to UASC will end before
their 18th birthday. It is strongly recommended that the statutory review
of their care or pathway plan should be timed to precede the ending of
their leave. The plan can then take account of the informed choices that
a young person makes in the context of Government policy.
Voluntary return
6.20 If a young person has to leave the UK the preferred option would be to
do so voluntarily. It is likely that voluntary return will be a durable solution
and it enables the young person to remain within the law, thus keeping
open the possibility of return to the UK in the future. It also enables
young people to be actively involved in the planning and preparation for
return and there would be no risk that they would abscond or disappear
into a setting where they could be exposed to danger and exploitation.
However social workers need to be assured that there are no concerns
in relation to child protection should a UASC choose to return voluntarily
to their country. For example, it would be inappropriate for a child who
has been trafficked into the UK to return home, whether voluntarily or
October 2005
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Section 6
forcibly without adequate safeguards being in place to prevent re-
trafficking.
6.21 Returning voluntarily to the country of origin under the International
Organisation of Migration's
(IOM) Voluntary Assisted Return and
Reintegration Programme (VARRP) is possible at any stage in the
asylum process even if the young person is held in detention. When the
VARRP application is submitted to IOM the asylum application with the
Home Office will be temporarily suspended for up to three months. The
Home Office decides whether a VARRP applicant is suitable for return
under the programme. The Home Office may use the information
provided on the VARRP application form now or in the future in the
normal course of their duties. The applicant could cancel their
application to return under the programme at any time prior to departure.
In this case the asylum application will become active again. Assistance
is given to applicants to obtain travel documentation, organise flights,
and IOM will assist at departure and provide transit and arrival
assistance. IOM can also support the returnee in the home country in
activities aimed at reintegration: education,
training or establishing a
small business. If a UASC has any other reintegration needs,
appropriate assistance can be discussed with IOM. More detailed
information is available on www.iomlondon.org
6.22 IOM works in close partnership with a number of agencies, the 'Choices'
project operated by Refugee Action, ‘Options’ operated by YMCA in
Glasgow, North of England Refugee Service, Safe Haven Yorkshire and
Wolverhampton Asylum Seeker and Refugee Services (contact details
for these organisations can be found on IOM's website). These agencies
can provide independent and impartial information and advice to enable
individuals to make an informed decision on whether to return to their
country of origin or remain in the UK. In cooperation with the responsible
social worker, partner agency, UNHCR and local NGO’s in the country of
origin IOM will ensure that the return of the UASC is in their best interest
and they will be placed safely with their family or an appropriate
institution. Social workers should be aware of the range of services
available from the partners and IOM, so that they can refer UASC who
wish to discuss the option of voluntary return. If a person claims to be
under 18 but has been age assessed by Social Services or the Home
Office and has been classified as an adult, they will still be treated as an
UASC unless they are stating a different age to IOM.
Returns, removals and young adults
6.23 The removal of UASC who have turned 18 is beginning to occur and the
number of young people being returned is likely to go up. Many UASC in
this situation are also “former relevant children” and as such personal
advisers need to be aware of the immigration status of the young people
they are working with and give this consideration in the pathway plan.
6.24 As well as understanding the asylum and immigration processes set out
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Section 6
above, the restriction of rights for failed asylum seekers and others also
needs to be considered. It is worth remembering that in terms of the
legislation the responsibility for ensuring that support can legitimately be
given to a former UASC rests with the Local Authority. Furthermore the
Local Authority must inform IND if they are supporting someone who
may be disqualified from Children Act support (Nationality, Immigration
and Asylum Act 2002 – Schedule 3 Section 14 (1)).
Planning for former relevant children during returns and
removals
6.25 In some cases the former relevant child continues to explore legal
avenues to review their asylum or human rights claims. During this
process the social worker needs to ensure that the young person doesn’t
lose sight of the possibility of return to their country of origin. In practice
there are a few scenarios surrounding a young person leaving the UK,
depending on whether they return home on a voluntary basis or leave
the UK through a forced removal.
• The young person opts for a voluntary return through the services
provided by IOM.
• If the young person has not opted for a voluntary return they may be
the subject of an enforced removal. Social workers should support
young people to co-operate with the removal process, as this is
likely to be less traumatic and will enable the young person to
contribute to the planning.
• It is likely that if a former UASC is to be forcibly removed they will be
held in detention prior to removal. In such instances the social
worker may have time to contact the detention establishment and
arrange a final visit in which to say goodbye and hand over their
possessions. If they feel a mistake may have been made or the
young person is particularly vulnerable the social worker should
assist the young person to contact their legal representative, a
voluntary agency, an independent advocacy service if possible, or
somebody within their community who may be able to initiate
contact with somebody who can intervene in the process, e.g. an
M.P.
• Should the young person choose to avoid return and disappear the
social worker should notify the National Register of Unaccompanied
Children and follow their local authority’s established missing
person’s protocol. The local authority will need to assess the
feasibility of storing the young person’s belongings.
6.26 The maps attached at Appendix 2 show the immigration status options
facing UASC (and the authorities which care for them) as they approach
their 18th birthdays.
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Section 6
Removal
6.27 Removal Directions will be set for young people, aged 18 or more whose
leave has expired, and other outstanding applications have been dealt
with. Legally Local Authorities will no longer be able to support them
unless they have made an assessment that by withdrawing support they
would be in breach of the young person’s human rights (though see 2.5
above). A young person who has reached 18, and has exhausted his/her
options for claiming leave will be unable to:
• Work.
• Claim benefit of any kind.
• Participate in further or higher education.
• Stay in public housing.
• Receive NASS support.
In practice, it is sometimes the case that young people are notified that
they have no rights to stay but removal directions are not issued
immediately.
6.28 Where young people do not comply with Removal Directions, it is
government policy to enforce the notice. At present these provisions only
apply to 18-year-olds and over, but the possibility of their application to
younger UASC whose leave has expired is being explored.
6.29 The implications of all this for contingency have been discussed above.
Leaving Care services also need to be clear about their Local Authorities
policy towards UASC left destitute after their 18th birthday.
The Protocol-IND Processes and liaison with Local Authorities
6.30 As with other complex processes co-operation between statutory
agencies is crucial. Some of the most important aspects of the process
have been set out here in a specimen protocol. There are three
important phases to note, IND Casework, Border Controls and Local
Enforcement Offices. The Protocol is designed to ensure the local
authority is able to track the progress of any application to extend
expired leave or any other matter. It will cover both applications and
appeals. The Protocol also outlines how IND deals with cases at the end
of the process.
This process moves between IND casework units and the Immigration
Service (see Appendix 3) on the structure and function of IND.
• The decision on all outstanding matters at the end of a period of
leave is dealt with by the specialist children’s casework units (see
6.31 – 6.34 below).
• If the decision is negative they will pass the case to the presenting
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Section 6
officers who prepare the IND case for the appeal adjudicators.
• If the appeal is allowed or a further grant of leave is recommended
the case returns to the specialist team.
• If the appeal is not allowed the case will pass to a central unit in the
Immigration Service (see 6.35 below).
• In the event that all necessary processes have been followed the
case is passed to a local enforcement office for removal action (see
6.36 – 6.38 below).
IND Casework
6.31 The young person will be offered a chance to present their case to the
decision maker in the form of an interview. If they are under 18 it is
possible for them to be accompanied by someone who will support them
in addition to their legal representative. However there is a strong
expectation that any such support person will focus on the immediate
welfare of the young person throughout the interview. The interviewing
officer is responsible for setting out how the interview will be conducted
and the ground rules for those involved are defined in an Interview
Protocol and the Role of the Responsible Adult leaflet.
6.32 It is always important and is especially so at this time that UASC
preserve any letters submitted to or received from IND. As well as
helping the young person the documents will help clarify the powers,
duties and funding sources for the local authority.
6.33 IND letters giving negative decisions do not assume that a timely appeal
has or will have been made. They will thus include a statement to the
effect that the person is required to leave the UK. If a timely appeal is
lodged or a fresh application made this requirement is in abeyance
pending the outcomes unless the application is certified and the appeal
is non-suspensive (see 6.2 above).
6.34 Once an appeal outcome is known it may affect the rights of the young
person. If it is negative both right to benefits and to leaving care support
may be ended if they are considered to be in the country unlawfully (see
2.5 above). The Home Office is preparing further guidance on this point.
Border Controls
6.35 Once all outstanding matters have been dealt with the case and file will
be transferred from IND Casework to the Immigration Service Border
Control section. A central unit will check all details before passing the
case to a Local Enforcement Office. Negotiations are underway with the
central unit to verify their records with any local authority involved as well
as with the central IND computer. This will assist the local authority by
informing them of the transfer of the case to its final phase.
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Section 6
Local Enforcement Offices 6.36 The job of the Local Enforcement Office (LEO) is to enforce Immigration
legislation and policy in local areas. Sometimes Local Authorities
encounter these offices as asylum seekers enter the UK and are
discovered by one of the statutory agencies before they have applied for
asylum.
6.37 Towards the end of the process the LEO’s main tasks are to maintain
contact with the unsuccessful asylum seeker through reporting
requirements. If they believe that a person is in the country unlawfully
they are likely to be detained forthwith pending removal (see 6.25
above). If this is not the case they will issue Removals Directions at the
appropriate time giving a date for the person to leave the UK. From the
given date the local authority’s power and duty to support the young
person is ended. They are known as a ‘failed asylum seeker’.
6.38 Local Authorities who routinely support UASC, and LEO’s should
develop systems to enable communication between each other. In this
way both agencies can ensure that young people are correctly identified
thus minimising removals based on incorrect information. Where young
people are nearing the end of the process it will enable them to prepare
better, and where their agreement can be won to forestall detention by
co-operating in the process of leaving the UK. Social workers and
personal advisers would be placed in an uncomfortable and hence
inappropriate position, if they were informed in advance of the removal
date of UASC. However a good relationship between agencies should
allow for some negotiation in the period pending removal, for example
arranging that the young person has all their personal possessions with
them.
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Appendix 1
GLOSSARY
A
Accommodated
The status of a child whose housing and other daily needs are provided by
the Local Authority under the 1989 Children Act provisions. An
accommodated child is also known as a looked after child (LAC) and there
are a range of duties and standards of care set out under regulation. Some
duties continue after the child turns 18.
Accommodation
This is both a common sense term for housing, or housing plus services,
and a special term defined by duties to children set out in Section 20.
Accommodation is a more generic term than ‘in care’. Children are the
subjects of Care Orders under Section 31 of the 1989 Children Act where
there has been evidence that they face a likelihood of significant harm. In
such instances the Local Authority has applied for a care order to share
full parental responsibility regarding the child and to determine where the
child should live. Whereas an ‘accommodated’ child under Section 20 of
the 1989 Children Act is a young person looked after by the Local
Authority with the agreement of their parents. Young people aged over 16
can consent to being accommodated by the Local Authority, and, also, the
Local Authority would have a duty to provide accommodation to children
who appear to be lost or abandoned.
The Hillingdon Judgment ruled that as UASC enter the country without
adults to take responsibility for their care their circumstances are such
that usually a Local Authority's assessment would presume that they
would need to be accommodated. After 13 weeks these young people
would gain entitlement to leaving care services as ’eligible‘care leavers
The provision of ’accommodation‘does not imply that a Local as authority
has assumed parental responsibility for a young person. Both children
subject to ’care orders’ or ‘accommodated’ children are commonly
referred to as being ’in public care’.
Active Review
A policy adopted by IND, which takes a proactive approach to reviewing
UASC cases for extended leave to remain.
Administrative non-compliance
A category of refusal for an asylum application. This can be a major
reason for UASC refusals, for example, if they do not return required
forms in time.
Age Determination
IND’s power to look into and determine the age of an asylum-seeker for
53
Appendix 1
the purposes of determining his/her entitlement to welfare support under
the Immigration and Asylum Act 1999, Section 94 Subsection 7. This
process requires decisions to be made quickly. It is open to challenge
either by submitting further proof direct to IND or in the case of children
the professional assessment of a local authority.
Age Disputed
A category of asylum-seeker recorded on the IND database. It implies that
someone has claimed to be a child but is being treated as an adult by
IND.
Application
The declaration made by an asylum-seeker to IND that they wish to be
protected by the UK Government and remain in the UK. It is a process
and at the early stages may only involve disclosure of basic details,
whereas later it may include details of alleged persecution etc.
Application Registration
Card (ARC)
A new system of ‘smart cards’ issued to asylum applicants. They contain
a photo and a ‘chip’ on which there are further identifying details, which
can only be read with special equipment. They are increasingly the main
form of proof of identity for asylum-seekers.
Asylum Screening Unit (ASU)
Asylum-seekers who have not declared at port of entry are likely to have
their initial contact with a Screening Unit. The best known is Croydon but
there are others, for example Liverpool. They are generally part of the
Immigration Service (see below).
Asylum
A general term for the protection offered by the UK to people who are
found to be at risk for a 1951 UN Convention reason and who cannot find
the protection they need from their own state authorities.
Asylum Casework Directorate (ACD)
ACD is made up of teams of caseworkers who will make asylum decisions
on applications and ensure the communication of the decisions to those
entitled to know. There are specially trained teams who deal with
applications from children. ACD has agreed to communicate with relevant
local authorities about UASC decisions and to deal with their queries
through the Central Point of Contact.
B
‘
Belonging’
Is the term used to define which Local Authority has responsibility. See
also’ Local Connection’ and ‘Ordinary Residence’.
54
Appendix 1
C
Caseworker (or Senior Caseworker).
A member of the ACD (see above), trained and skilled in decisions about
refugee status, humanitarian protection etc. They will gather the
information relevant to an application and make the initial decision.
Central Point of Contact
A special IND unit in Croydon which has been set up to assist local
authorities who need information on individual cases. There is a
telephone number dedicated to enquiries about UASCs. As confidential
information is being shared, users need to be registered as
bona fide representatives of a local authority with a need to know.
Certified
In some cases an application may be dealt with via a shortened
procedure. In some cases where an application has a negative decision
IND may consider that there is so little risk of persecution in the country of
origin that it would be safe to return the person to that country and allow
them to pursue any appeal from outside the UK. This is also known as a
non suspensive appeal i.e. other appeals suspend the removal process
but this appeal does not.
Convention (on Refugees)
The UN Convention, which describes the particular circumstances, which
qualify someone for refugee status as opposed to other protection, needs
which an asylum-seeker may have (United Nations 1951).
Not to be
confused with the UN Convention on the Rights of the Child 1989.
Courier
An adult, who accompanies the child/young person to the UK, but takes
no further responsibility for them. They may or may not be paid, and/or
involved in smuggling or trafficking (
q.v.).
D
Discretionary Leave (DL)
A time-limited permission for asylum-seekers to remain in the UK despite
the fact that they have not established that they are refugees nor that they
require humanitarian protection. UASC may be given DL since they
cannot be returned as children. In the case of adults the leave is subject
to thorough review at 3 years. For most UASC the review is at 3 years or
18th birthday whichever is the sooner.
E
Eligible Child
A child aged 16-17 and who has been looked after for at least 13 weeks
55
Appendix 1
(which do not have to be consecutive) since the age of 14, who has been
looked after following their 16th birthday and remains in care.
Exceptional Leave to Enter and/or Remain. (ELR)
The legal permission which may in the past have been granted to an
asylum-seeker who has not established that s/he should be considered to
be a refugee but nevertheless needs to remain in the UK. Some UASC
may been granted ELR because of serious humanitarian needs; but
others, who would be returned if they were adults, may have received
ELR up to their 18th birthday. The ELR policy has been replaced by the
Humanitarian and Discretionary Leave policy.
F
Framework for Assessment
Guidance produced by the DoH, DfES and the Home Office under Section
7 of the Local Authority Social Services Act 1970, which provides a
systematic way of analysing, understanding and recording information
about children in need and their families and carers. Use of the framework
is not laid down in statute, and it does not have the force of law, but
unless there are exceptional reasons, Local Authorities are required to
follow this framework.
Former relevant child
A young person aged 18+ with a continuing entitlement to support as a
care leaver from their responsible local authority. Former relevant children
will have previously been eligible or relevant.
.
G
Grant
Local authorities assisting UASC can claim a grant payment from IND for
any UASC they are supporting under their 1989 Children Act duties. The
grant is paid for specific expenses only and applies to under 18’s. Local
Authorities service developments, which help ensure IND processes are
completed efficiently, or which are more efficient in cost terms, may be put
to IND as bids for special grant funding.
H
Hillingdon Judgment
The result of a judicial review in respect of Hillingdon’s treatment of UASC
previously cared for by them under Section 17 of the 1989 Children Act.
The judge found that the complainants (and by implication, many other
children in the same situation) had been
de facto ‘Looked after’, and were
therefore ‘former relevant children’ for the purposes of Section 23c of the
56
Appendix 1
Children (Leaving Care) Act 2000. This meant that they were entitled to a
range of care leavers’ services specified under this Act.
Humanitarian Protection
Asylum-seekers who do not qualify as refugees, (e.g. because their
persecution is not due to religious or political affiliation), may never the
less need protection from life threatening situations, or inhuman or
degrading treatment. If their own government is unable or unwilling to
protect them, the UK government may accept a duty to. This is new policy
development.
Human Rights Act
The Human Rights Act sets out the different grounds on which someone
may be entitled to take action against a government agency for the
treatment they have received:
• Article 2 is the right to life.
• Article 3 concerns the rights to have one’s life protected free
from torture (see, Humanitarian Protection).
• Article 8 gives rights to personal and family life.
I
Immigration and Nationality Department (IND) of the Home Office
IND contains all the Home Office services, which relate to immigrants to
the UK. The main directorates concerned with decisions in asylum cases
are the Immigration Service, the Asylum Casework Directorate and the
National Asylum Support Service.
Immigration Service
This directorate of IND deals with people entering the UK or with those
who should leave on the expiry of their leave to remain. Its officials screen
applicants at ports or in screening units and issue necessary documents
pending decisions on the application. Asylum cases are usually
transferred quickly to the Asylum Casework Directorate (see above).
Indefinite Leave to Remain (ILR)
This leave entitles the individual to settle in the UK and is granted to those
recognised as refugees.
Information Note
A general summary of the arrangements for dealing with UASC published
by IND in August 2002 now under revision.
Integrated Children’s System
A new system based on the Framework for Assessment of Children in
Need and their Families. It provides a common framework for recording
assessment, planning intervention, and review of children in need and
their families, including looked after children and care leavers. It will be
introduced in all Local Authorities from January 2006.
57
Appendix 1
Interview (also known as substantive interview)
In the past UASC were not interviewed by asylum caseworkers, but a new
policy is being developed which will require UASC to attend for interview.
This is in response to the principle that the voice of the child must be
heard, and also helps to meet the requirements for due legal process.
Failure to attend may lead to a negative decision for administrative non-
compliance (
q.v.).
IOM
International Organisation of Migration, which makes arrangements for
the voluntary return of minors, in collaboration with the Home Office.
J
Judicial Review.
A legal mechanism by which statutory agencies (among others) may be
challenged on how they have applied their processes or interpreted or
applied the law relating to their legal duties. In some cases, a Judicial
Review may apply only in very special circumstances; in others it may
have a more general application.
L
Local connection
The principles against which local authorities determine which authority
has a duty to assess an applicant’s housing needs.
Looked After Children (LAC)
Children for whom their Local Authority has day-to-day responsibility for
their care (see ‘Accommodation’ above). All children looked after will have
a care plan based on a detailed assessment of their needs, which will
include arrangements as to where they should live, how their education
and health needs will be met and short, medium and long term plans for
their futures. The care planning process must take account of the wishes
and feelings of children and young people and of their parents. The care
plan replaces the pathway plan when looked after children reach the age
of 16, at which point they may be referred to as ‘eligible’ care leavers.
N
National Asylum Support Service (NASS)
A Home Office Agency set up to find and manage accommodation and
other support for destitute asylum-seekers. NASS does not offer support
to UASC, but there are a number of points where the Service’s work
58
Appendix 1
interfaces with Local Authorities working with UASC: the design and
management of the UASC grant, transfer arrangements at 18 and UASC
who may subsequently be discovered to have friends or relatives willing to
care for them and who are receiving support from NASS.
NGOs
Non-Governmental
Organizations.
O
Ordinary Residence
Ordinary Residence is the term used in the Children Act 1989 Section 30
to ascribe responsibility to a particular area’s children’s services. The
assumption is that there will be no doubt in the vast majority of cases.
Another principle of the Act not stated in the Section, is that the Local
Authority where a child happens to be will respond to urgent needs in
default of anyone else. The section invites local authorities to prevent or
resolve disputes by voluntary agreement.
P
Protection of Children Act 1999 (PoCA)
This Act amended and extended the law regulating the employment of
people working with children. It requires childcare organizations to check
applications with the Criminal Records Bureau.
R
Refugee
See Convention.
Relevant child
A child who is aged 16-17 who has been looked after for at least 13
weeks since the age of 14, has been looked after following their 16th
birthday and has then left care is referred to in the Children (Leaving
Care) Act 2000 as a relevant child. Relevant children therefore will have
been eligible. Children leave care where (a) a Court discharges a Care
Order; (b) where they are accommodated the parents discharge them
from care; or (c) where they are accommodated, a statutory review of
their care/pathway plan recommends that they no longer require to remain
accommodated in order to meet their needs (as assessed and recorded in
the pathway plan). The recommendations of statutory reviews must take
account of the wishes of young people and their families.
Removal Directions
The determination by IND that the young person has no further valid claim
preventing their compulsory return to their country of origin. A date will be
set for his/her removal.
59
Appendix 1
S
Section
20 (1989) Children Act
See ‘Accommodation’ above.
Safe Case Transfer
A voluntary arrangement between local authorities to transfer the
responsibility for a particular child who is likely to live for a significant
period in the host authority area and needs to be included in their local
partnership plans for local children.
Self-Evaluation Form (SEF)
A form issued to children applying for asylum and who to date would not
have received a ‘substantive’ interview. Forms need to be completed and
returned to IND within 28days.
Smuggling
Smuggling is the transport of a person (with their consent) to another
country through illegal means. The vast majority of people entering the
UK unlawfully are smuggled rather than trafficked (see Trafficking below).
People smuggling is the facilitation of illegal entry, in breach of
immigration law, either clandestinely or through deception or the use of
false documentation. In this sense ‘smuggling’ refers to the illegal
transport of a person or persons across state borders, which results in a
benefit for the smuggler. It follows that the person smuggled will be
complicit, often paying large amounts of money to be transported, and
once in the country they wish to enter will be left to their own devices.
Supporting People
A programme that funds the provision of housing-related support services
for vulnerable people, to enable them to maintain or improve their ability
to live independently. The programme is administered at the local level,
with top-tier local authorities commissioning appropriate services to reflect
local needs and priorities.
T
Trafficking
The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons,
especially Women and Children, supplementing the UN Convention
against Transnational Organised Crime (2000) to which the UK is a
signatory, includes a comprehensive and widely accepted definition of
trafficking, which involves three core elements:
• Movement of a person.
• With deception or coercion.
• Into a situation of exploitation.
60
Appendix 1
In practice, it may be quite difficult to make an initial distinction between
smuggling (See Smuggling above) and trafficking. In some cases, young
people may think that they are being smuggled, but are in fact, unknown
to them, being trafficked. Equally, trafficking often does include an
element of smuggling, namely the illicit crossing of a border. However,
there are also elements of trafficking
within a country as the traffickers
move victims between locations and sometimes sell them to another
organisation.
U
Unaccompanied Asylum-Seeking Child (UASC)
A child who is or appears to be under the legal age of majority (18 in the
UK), and on arrival in the UK is not accompanied by a parent, guardian, or
other adult who by law or custom is responsible for him/her and who
claims asylum. Children in this situation are also known as separated
children, unaccompanied minors or ‘UAM’.
UNCRC
United Nations Convention on the Rights of the Child.
UNHCR
United Nations High Commissioner for Refugees.
V
Voluntary Assisted Return and Reintegration Programme.
A programme run by IOM (
q.v.), which is available at any stage in the
asylum process, unless removal directions have been set or the person
has been detained.
Voluntary Departure
The assistance to prepare and leave the country given to unsuccessful
asylum seekers who have run out of options to remain, are required to
leave the UK and actively comply with the requirement to leave.
61
Appendix 2
STAGES 1
NB. This is a highly schematic representation. It is no to be taken as a comprehensive account of all the possible IND process paths.
LA
IND
1 ARRIVAL
Initial assessment checks
Processes initial application and
needs, age, local connection
may decide to interview child to
and asylum status.
decide appropriate process, e.g.
age dispute and details for ARC
card
Comp lete
initial assessment
defines services to be supplied.
2
IS to Asylum Casework
7 DAYS
Includes induction information
Directorate transfer. File
an
d preparing for interview.
moves to case management
team. Incorporate any new LA
information e.g. change of age
via CPC.
Receive
SEF (minor)/
Review Care Plan
3 28 DAYS
conduct
asylum interview (at
present some interviews
Agree Care plan and placement
conducted as part of
interview
for 6 mths.
pilot)
Decision
Co
mplete
5% to
8% receive ILR and exit
Core assessment
4 42/54
asylum process) over 10% do
DAYS
not comply with process and
get outright refusal. Over
APPEAL
60% are refused asylum but
In 10 working
days
receive limited leave (DL)
usually to 18th Birthday.
Datamatching with IND via
Ex
R/DL
piry of EL
possible
CPC. Regular
care reviews
vol
untary return. Active review
5 TRACKING
focu s and plan for
expiry of
may lead to early return.
DL/HR/ELR
Plan for
Transition to adult
status. Prepare either NASS or
Review fresh information and
Job Center Plus benefit
6 17½ PLANNING
prepare for end of DL/HL/ELR
app
lication if eligible 4-6 week
at 18 in most cases
lead in.
Transfer to appropriate support
Deal with outstanding
arrangements
post 18 yrs e.g.
7 18th BIRTHDAYS
applications/ appeals. If
leavi
ng care + benefit or
successful applicant exits
NA
SS
asylum system, if not successful
moves to adult asylum
processes.
NB
Page 2 deals with returns and removals as if they tend to occur post 18. However this will not continue to be the
case as more under 18’s opt for voluntary assisted returns and may be returned if suitable arrangements are made in
the country of origin.
62
Appendix 2
STAGES 2
POST 18 Processes for Former UASC
LA
IND
Actively review applications
Continued Support
(target not yet formally
S20/leaving care (LC)
8 Dealing with
decided)
OR S17/Connexions
further or
outstanding
Identify “end of process” cases.
NASS/Benefit/LC only
Information passed to IS. Decide
Check continuing legality of
applications/appeals
on applications for NASS funding
LA Support.
including S55 decision.
9
Removals Directions If
Returns/removals
Pathway Plan
appropriate prepare and serve
A) Decisions
on former UASC (copy to
(LA or Connexions) manages
“Is unsuccessful at all stages or
LA) giving date to quit UK.
integration if successful or
hasn’t complied with
RD’s reduce options for
preparation for voluntary or
requirements”
assisted return
managed return if not.
LA Continue only if
Removals Directions
10
Returns/Removals
Assisted return
monitored and continue to
OR Voluntary return by due
B) Process
apply i.e. no further valid
date.
claim preventing removal.
NB Must be agreed with IS.
File passed for action ASAP
OR Due date passes
after due date.
without compliance End of LA power and duty
IS take steps to bring about
removal
63
Appendix 3
IND FUNCTIONS
There are separate directorates within IND with different functions.
Communication for external agencies can be difficult through lack of
understanding of these differences, for this reason Local Authorities have
been provided with a special helpline known as the Central Point of Contact or
Local Authority coms.
THE IMMIGRATION SERVICE (IS)
The main functions of this service are border control, detention, enforcement
and immigration crime investigations. In practice with UASC social workers
and NGO staff will encounter IS most often as young people enter or leave
the UK. The volume of work at points of entry or application means that
cases are moved on within a few days. Queries made directly to the port or
screening unit can meet with delays while they catch up with the case file.
PORTS
People without rights of residence in the UK must gain permission to enter
and this decision rests with an Immigration Officer at the port of entry. If
someone declares themselves to be an asylum seeker at the port then the
initial parts of the process will be carried out there. However in complex
matters an applicant may be required to return or to attend an Asylum
Screening Unit for a screening interview.
SCREENING UNIT
These are large offices where people who have already entered the UK
without contacting the immigration service may apply for asylum. There are
two main units at Croydon and Liverpool. There is a smaller unit in Solihull.
The staff in these units will have received special training in screening UASC.
In some UASC cases the screening can be a formality but it can also include
interviews where necessary.
SCREENING INTERVIEW
In the past UASC were not screened by interview in any depth. This was
because immigration staff had not been trained in working with children.
Unfortunately important information about the child’s background was being
lost as a result and this resulted in delays later in the process. IS staff have
now received this training and set up a child friendly process. A young person
undergoing such an interview is enabled to give a fuller account of how and
why they came to the UK. Better asylum decisions should result allowing
faster integration or return.
STATEMENT OF EVIDENCE FORM
As part of the entry process the Immigration Service will issue a young person
with a statement of evidence form (SEF). It must be completed and returned
64
Appendix 3
within 28 days or the application may be considered invalid. In the past this
was the only way in which a UASC asylum application was evaluated.
Compliance with the procedure was poor and the rate of successful
applications for UASC was low as a result.
LOCAL ENFORCEMENT OFFICE
Each area in the UK has a LEO. Staff in these offices may encounter people
who have entered the UK unlawfully and come to the attention of the
authorities before they have claimed asylum. However these offices have
other functions. Asylum seekers, though not UASC, may be required to report
regularly to a LEO. These offices will also be charged with arranging the
returns of those who volunteer to leave or the removals of those who do not.
ASYLUM CASEWORK DIRECTORATE
The next stage in the process is managed by IND caseworkers. They will take
over responsibility within a few days of screening. Their duties include
collecting and evaluating information relevant to asylum applications. In the
case of UASC this will include the self-assessment form and information
about the country of origin and the political, religious, racial and cultural
considerations that have led to the claim.
Special teams deal with UASC cases because there are various concessions
given to lone children, e.g. exemption from detention and restricted removals,
which need to be considered. The special teams will track the UASC case to
final outcome.
ASYLUM INTERVIEW (SUBSTANTIVE INTERVIEW)
As compliance with the SEF requirement is generally poor, special
arrangements have been made to set up a child friendly interviewing system.
An initial pilot study was carried out in 2003 and a further pilot is planned for
2005.
ASYLUM DECISION
Decisions are now delivered much more quickly than in the past, generally
within 2 months. In the case of an application by someone under 18 the
decision may be accompanied by a grant of leave (described elsewhere).
UASC are generally not given an outright refusal unless they have turned 18
or have been reunited with adult relatives with whom they might be removed.
In the case of 18 year olds they need to appeal within a very short period of
the outright refusal or they may lose any right to ongoing ‘leaving care’
services.
APPEALS
The IND case is handled by presenting officers, though independent legally
trained adjudicators hear the appeal. Some appeals are heard with the
applicant in the UK. They are known as suspensive appeals (i.e. the removal
65
Appendix 3
is suspended). If leave is for 1 year or less and the applicant is from a non-
suspensive appeal (NSA) country the appeal may be heard after their
removal.
In the past many UASC have not appealed but preferred to wait out their
period of leave and apply to extend it. Refusal to extend also carries appeal
rights. While this extended their stay in the UK it carried risks if a changing
situation in their country of origin or their adult’s status made them more
removable.
A Tribunal may review appeal outcomes and if appropriate a judge may
review the papers. These processes are relatively quick.
APPLICATIONS TO EXTEND LEAVE
Delays in deciding on applications to extend leave are a thing of the past with
the setting up of an Active Review Team. At the end of a period of leave this
team, which includes specialists in children’s casework, will deal with any
outstanding applications very quickly. Where appeal rights exist they are also
being dealt with quickly.
Once there is a final decision the case will pass on quickly to full integration if
ILR has been granted, back to the Immigration Service if the appeal has not
been allowed. In the rare event that a further period of restricted leave has
been given the case remains with the active review team.
NATIONAL ASYLUM SUPPORT SERVICE (NASS)
NASS has a statutory duty to provide support to asylum seekers who are
aged 18 or more. This can include family units containing children. NASS also
manage a special grant for local authorities providing UASC services. It does
not manage the services or dictate how they should be run. In practice contact
with NASS concerning UASC involves queries about grant eligibility, change
of status to adult or dependant child, or queries about restrictions placed on
access to services by immigration legislation.
ASYLUM POLICY CHILDREN AND FAMILIES UNIT
This unit develops policies about how all aspects of a child’s asylum case
should be handled. It also considers the interface between IND and other
statutory services charged with safeguarding and promoting the welfare of
children. The unit produced an Information Note giving much more detail of
the functions and policies set out above. It is currently being reviewed.
66
Appendix 4
FLOW CHART SHOWING SUPPORT OPTIONS WHEN UASC REACH 18
Was the young person given YES
Apply for DWP benefits.
leave which is about to
expire and have they made
an in time application for
further leave?
NO
Make application to NASS
Has the young person got an
with NASS1 form 4-6 weeks
outstanding asylum claim?
YES
before 18th birthday. Include
information on whether
applicant is a former
relevant child.
NO
Has the young person made
Make application to NASS
an out of time application for YES
with NASS1 form. Include
further leave and a decision
information on whether
has been taken to treat this
applicant is a former
as a fresh asylum claim?
relevant child.
Please always refer to the detailed information about these scenarios as set out in previous sections of this policy
bulletin.
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BUILDING A SAFE, JUST AND TOLERANT SOCIETY
Appendix 5
TRAINING AND WORKFORCE DEVELOPMENT
This list is not exhaustive and is merely a starting point; however training should cover as
many of the following components as is possible:
• Understanding equalities, diversity and anti-discriminatory practice
• Child protection procedures
• How to involve children/young people in making informed choices, in the context of
their country of origin and their experience of exile
• How to work effectively with interpreters
• The importance of observational and non-verbal communication skills
• The context and complexities of attempting to assess age
• How to assess independent living skills
• How to recognise and work with child victims of trafficking, prostitution and other
forms of commercial exploitation
• Understanding and resolving the challenges in building trusting relationships with
children/young people from different cultures
• Understanding of dynamics of mixed groups of children/young people
• Understanding of the impact on UASC of separation, loss, pain, bereavement (and
cultural variations)
• Awareness raising about the importance of attachments for displaced children
• Awareness raising of symptoms of mental distress – depression, post-traumatic
stress, etc.
• Developing knowledge of particular medical conditions which they may need to
recognize (these will change from area to area, and over time)
• Developing knowledge of cultural and physical differences in relation to personal
care
• Developing knowledge of home countries: religions and religious needs and
customs, languages, politics etc.
In addition staff should have the opportunity to familiarise themselves with all current and
emerging guidelines and protocols relevant to their work with UASC.
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BUILDING A SAFE, JUST AND TOLERANT SOCIETY
Appendix 6
FURTHER READING
Chief Secretary to the Treasury (2003):
Every Child Matters, TSO
DH, DfES, HO (2000):
Framework for the Assessment of Children in Need
and their Families, DH
The Connexions Service National Unit (2003):
Working Together/Emerging
Practice – Connexions supporting young asylum seekers and refugees. The
document is available to download from the Connexions website:
www.connexions.gov.uk
Save the Children (2005):
Young Refugees: A guide to the rights and
entitlements of separated refugee children (Second Edition).
Children’s Society, Save the Children, Refugee Council (2002):
A Case for
Change: How refugee children in England are missing out.
Selam Kidane (2001):
Food, Shelter and Half a Chance, British Agencies for
Adoption and Fostering.
ADSS (2003):
INTAKE: framework and practice guidance for the safe and fair
reception and assessment of children and young people seeking asylum in
the UK without parents or guardians.
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BUILDING A SAFE, JUST AND TOLERANT SOCIETY
Appendix 6
- 70 -
BUILDING A SAFE, JUST AND TOLERANT SOCIETY
Document Outline
