Support for unaccompanied children and children in families
Which former unaccompanied asylum seeking children may be provided with accommodation under section 4 of the Immigration and Asylum Act 1999 (section 4 support)?
(NB: For the purpose of this question a 'former UASC' is someone who arrived in the UK alone and claimed asylum before they were aged 18 and has since turned 18)
Many local authorities are routinely directing all their former unaccompanied asylum seeking children (UASC) to the UK Border Agency (BA) for 'section 4' support once they become 'appeal rights exhausted' following the expiry of a period of discretionary leave (usually granted until age 18 and then extended until a further decision is made where an application to extend the leave is made 'in time').
However, it is not always the case that a power exists to accommodate former UASC under section 4 in which case the duty to provide support, including accommodation, may be retained by the local authority in order to avoid a breach of the young persons human rights. [1]
The power to provide, or arrange for the provision of, facilities for the accommodation of certain persons derives from s.4 of the Immigration and Asylum Act 1999.The eligibility criteria for providing section 4 support are set out in regulations made under section 4 (5) of the Act [2].
The power to provide section 4 support will only exist for some former UASC and local authorities should be aware of which former UASC fall within the s.4 power and which do not.
It is only in a case where the power exists (see below) and the eligibility criteria set out in the regulations are met, that s.4 would be the natural source of support for former UASC in order for a breach of their human rights to be avoided. [3]
The power to provide support section 4
Section 4(1) provides that the Secretary of State may provide, or arrange for the provision of facilities for the accommodation of persons-
(a) temporarily admitted to the United Kingdom under paragraph 21 of Schedule 2 to the 1971 Act;
(b) released from detention under that paragraph; or
(c) released on bail from detention under any provision of the Immigration Acts
Section 4(2) provides for the same if;
(a) he was (but is no longer) an asylum - seeker, and
(b) his claim for asylum was rejected .
Section 4(3) provides for the same if;
the person is a dependant of an asylum seeker (as defined in 4(2) ) whose claim for asylum was rejected
The power under s.4(2)
It should be noted that 'asylum-seeker' (section 4(2) above) in this context has the same meaning as defined at section 94 of IAA 1999. In this definition an asylum seeker is a person -
(a) who is at least 18 years old,
(b) who is in the United Kingdom
(c) who has made a claim for asylum at a place designated by the secretary of state
(d) whose claim has been recorded by the Secretary of State, and
(e) whose claim has been determined
Therefore where a decision was made on an asylum claim before the UASC's 18th birthday and s/he is now 18, there is no power to accommodate her/him under section 4(2) unless:
1. The former UASC appealed from the asylum refusal and that appeal was pendingon his/her 18th birthday [4]. (Bearing in mind that an appeal remains pending so long as an in-time application for permission to appeal further can be made). Where an appeal from the asylum refusal was pending on his/her 18th birthday the person would fall within s4 if the appeal was finally dismissed; or
2. There was a right of appeal from the asylum refusal which was not exercised AND the time for making that appeal expired after the UASC's 18th birthday. In that case, the person would fall within s4 when the deadline for appeal expired [5].
The power under section 4(1)
Note that section 4(1) makes no mention of 'asylum seekers'. There is no power to accommodate under 4(1) unless the former UASC is EITHER currently subject to a formal grant of temporary admission (on a Form IS96) OR has been detained and is currently on bail granted by a chief immigration officer or immigration judge.
Where a UASC was given temporary admission on entry (port applicants) and they were later granted discretionary leave, the leave replaces the temporary admission. When that leave expires (when they become 'appeal rights exhausted') they become 'overstayers' rather than someone (again) with temporary admission.
Only where a former UASC had been notified of a Home Office decision to remove from the United Kingdom AND is currently subject to a formal grant of temporary admission (on a Form IS96) OR has been detained and is currently on bail granted by a chief immigration officer or immigration judge would they fall under the power under section 4(1) instead.
Who is responsible for accommodating former unaccompanied asylum seeking children?
Excepting those who fall within the criteria outlined above for whom the BA would be responsible, the burden of accommodation and support would fall on the local authority under whose care the former UASC had been. If the BA were to provide s.4 support to a person who was ineligible they would be open to legal challenge by way of judicial review. If a local authority similarly refused to accommodate and support on the ground that NASS should be supporting they would be open to legal challenge.
Notes
[1] Under s.54 and Schedule 3 of the Nationality, Immigration and Asylum Act 2002 a former UASC who falls within one of the specified classes of 'ineligible person' is ineligible for support under a range of local authority powers and duties unless they fall under one of the exceptions listed at paragraph 2 of Schedule 3 or the exercise of the power or performance of the duty is necessary for the purpose of avoiding a breach of their (ECHR) Convention rights or rights under the Community Treaties under paragraph 3. A local authority which made a former UASC destitute where no other lawful support was available may be in breach Article 3 of ECHR if there were barriers to the young person's return such as lack of travel documentation or safe route.
[2] The Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005, SI 930. s.4(5) was inserted into IAA 1999 by Asylum and Immigration (Treatment of Claimants etc) Act 2004 s.10 (1)
[3] Paragraph 2 (e) of Regulation 3 of 2005 Regulations (ibid) state one of the conditions as being that ; "the provision of accommodation is necessary for the purpose of avoiding a breach of a person's Convention rights, within the meaning of the Human Rights Act 1998."
[4] Because the person would become an asylum seeker at this point
[5] For the same reason as at footnote 4
