Immigration And Nationality For Children In Care

Immigration and nationality for children in care

Published: 24/02/2021

Author: Sukhchandan Kaur

I am a member of the Equal Justice for Migrant Children Advisory Group. We are a group of lawyers, social workers, and academics who are campaigning for a specialist court or jurisdiction for migrant children so that in all matters concerning them and their upbringing their welfare is the court’s paramount consideration. 

It is unlikely that anyone actually knows how many children being looked after by local authorities have unresolved issues relating to their immigration and nationality status.

Care proceedings do not deal with this issue since the family court has no power to regularise a child’s immigration status as part of the range orders made at the conclusion of a case. With the making of a final order, the children’s guardian and the solicitor for the child leave the stage and such questions are left for the local authority, in particular, the Independent Reviewing Officer (IRO) to deal with.

The local authority has a duty of care to all children they are looking after, those under care orders and children looked after under s.20 of the Children 1989 Act in England or s.76 of the Children and Families 2014 Act in Wales, including Unaccompanied Asylum Seeking Children (UASC). As the House of Lords decided in Barrett v Enfield LBC [2001] AC 550 that means that the local authority has positive legal duties to act to improve the child’s situation and can be liable in damages if it unreasonably fails to do so.

In 2016, the Royal Borough of Greenwich and Dudley Metropolitan Borough Council were both made the subjects of adverse findings by the Local Government Ombudsman and ordered to pay compensation where they had neglected to resolve issues with children’s passports and immigration status whilst they were looked after.

What is often not appreciated is that some routes to ensure that a child can remain in the UK are only open until the child’s 18th birthday and some doors start to close much earlier than this. There is, for example, no ‘good character test’ for a child under ten years of age applying for British citizenship. To leave matters for a child to sort out themselves, once they are no longer in care, can mean that previously straightforward options to obtain British nationality or indefinite leave to remain are irretrievably lost, particularly if the child has got into any trouble with the police. Migrant children who are successful in applications for asylum, including UASC, are usually given permission to stay only until they are 17 and a half years old. All too often, despite the local authority’s duties as a corporate parent, nothing is done to help prepare the young person’s case to present to the Home Office before that permission runs out and children’s rights under immigration and asylum law are lost as they turn 18.

A difficulty, which has been pointed out many times, is that practitioners in the field of children and families seldom have any understanding of immigration law. As Sir James Munby explained in Re M & N [2008] EWHC 2281 (Fam):

‘…many family practitioners lack anything more than a fairly rudimentary knowledge of immigration or asylum law and practice (or for that matter housing law and practice). Too often, therefore, when answers to even quite basic questions are forthcoming it is painfully apparent that what one is being told simply cannot be correct. I make the point not to criticise practitioners, who in the modern world of specialisation and sub-specialisation cannot be expected to keep themselves up to date with or to understand the minutiae of other areas of law…’

If the situation is difficult for the lawyers, how much more challenging is it for the IRO or service manager to be clear whether there are steps they need to take to protect an individual child’s right to remain in the UK once they leave care. There will be very few local authorities who can boast immigration and nationality specialists within their legal teams and obtaining outside advice puts further burdens on already over-stretched budgets.

Local authorities should, however, be clear that the financial consequences of leaving these issues may end up being expensive. Imagine a care leaver who applies for their first passport in the middle of a promising university career, only to find that they have no right to remain in the UK and are to be deported. Potential negligence claims for a lifetime’s lost earnings make the cost of early advice and action appear insignificant. This is aside from the important issue of fulfilling the duty of corporate parent for children who badly need adults to be helping them secure their future.

A problem-solving ‘one-stop-shop’ single court, which could resolve both care and immigration matters could be a sensible solution. Whilst many of us are working hard to bring this about, such hopes and good intentions do nothing to help children in the here and now. For the present, there is an urgent need for local authorities to adopt a much more active and interventionist approach to the immigration status of children who are looked after; to positively look for such issues and to bring in outside expertise, where needed, to advise and to process the necessary applications. As a starter, a briefing produced by Free Movement contains some helpful basic guidance.

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Sukhchandan Kaur

Sukhchandan Kaur (CQSW, LLB(Hons) is the Chair of Nagalro, The Professional Association for Children's Guardians, Family Court Advisers and Independent Social Workers. This blog is written by a member of the Equal Justice for Migrant Children Advisory Group. Equal Justice for Migrant Children is a Project of First Rights, a programme of UK human rights charity Methoria (email: methoria@icloud.com).

Topic Child Protection 4

Children in care

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