New report examines protection needs of children without legal immigration status

The Migrant and Refugee Children’s Legal Unit (MiCLU), based at Islington Law Centre, yesterday released a comprehensive new report on the problems faced by ‘undocumented’ children without legal immigration status.

In the report, MiCLU presents the findings of over four years of specialist casework with 52 children and young people who are unable to prove that they are British or otherwise lawfully allowed to remain in the UK. According to the report, a 2012 paper published by the University of Oxford’s Centre on Migration, Policy and Society (COMPAS) estimated that there are 120,000 children living in the UK without legal immigration status. More than half of these children were born in the UK and another large proportion of them have lived in the UK most of their lives. MiCLU says that the combination of legal aid cuts, the Government’s ‘hostile environment’ strategy and the ever-shifting field of immigration and asylum law, means undocumented children and young people are falling through bureaucratic, legislative and systemic cracks that are not covered by the asylum system, mainstream welfare services or existing children’s legislation and procedural guidelines.

MiCLU’s team of children’s rights lawyers noted in the report: “In our immigration practice, the cases of lone children and young people (CYP) were often the most complicated to navigate, investigate, prepare and advise on. In addition to the capacity and participation issues faced by CYP in complex legal proceedings, as legal advisors we would frequently encounter highly complex and interconnected legal problems faced by this group because of their precarious immigration and citizenship status: for example, their precarious immigration status or lack of documented status placed them at risk of removal from the UK, and unable to access financial support. If left unresolved these problems had the potential to impede, obstruct and even damage their ability to survive and develop fully. “

While MiCLU says its casework approach was highly successful in bringing about positive outcomes for the majority of the 52 children and young people featured in the report, such outcomes are exceptional: “the casework team offered intervention far beyond the scope of current legal aid provision.”

The report outlines its key findings as follows:

• Access to justice for this group of children and young people (CYP) is extremely restricted following cuts to legal aid provision. Without qualified specialist representation CYP lives can be placed in danger, their wellbeing jeopardised and it can prove difficult for statutory and non-statutory agencies to protect them against the risk of injustice.

• Many CYP do not fully realise the constraints of their status in their lives until they become older teenagers and young adults.

• CYP are highly vulnerable, having experienced prejudice and harm early on in their lives, and as a consequence struggle to engage with their legal problems, unable to access the protection and support they need, exacerbated by their undocumented and separated status.

• Often their legal and protection needs are unmet due to their complicated and fractured lives and their inability to define their ‘identity’ and what is happening to them as something which may attract legal redress.

• There is an overreliance on CYP to self-identify complex legal and immigration status problems by professionals and non-legal practitioners when making an assessment of their needs. CYP require specialist legal support to help investigate and diagnose their legal issues.

• Neither CYP nor non-legal professionals are able to identify the existence of trafficking and international protection claims (including asylum claims) without specialist legal advice, and this prevents CYP who would be eligible from accessing legal aid.

• Legal issues can be interlocked and interdependent. CYP were unable to access relevant services to protect and promote their welfare and wellbeing due to their undocumented status. This was, at least in part, also due to support agencies being unable to fit CYP’s unclear immigration status within their own frame of reference nor to identify legal needs which led to an inability to provide adequate services due to a misunderstanding of their rights as CYP in need.

• Many CYP faced multiple vulnerability factors and legal needs which, when combined, increased their vulnerability and created further legal problems whilst also worsening welfare and social problems such as support provision and relationship issues.

• The current immigration process fails to acknowledge the needs of this group of children as immigration applicants in their own right ‘in the immigration system’ (in comparison to formal acceptance and recognition in the ‘asylum system’), or to address the implications of family breakdown upon CYP who may have been dependents on those family, or adult, applications

• Routes to regularisation of immigration status that are available to CYP, and to which they have an entitlement, are overly complicated, bureaucratic, expensive, and not child-friendly

• The length and conditions of leave to remain granted by the immigration authorities in recognition of CYP’s long residence and life in the UK do not safeguard the wellbeing and future development of CYP whose futures lives clearly lie in the UK

• The length and conditions of leave to remain granted by the immigration authorities to young parents of British children do not make the best interests of those British children a primary consideration when considering the length of leave and the processes and fees required to make repeated applications for extension of leave to remain.

MiCLU calls for changes to law, policy and practice, and says undocumented children must be treated as “children first and as migrants second”.

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