Support for unaccompanied children and children in families
Can Local Authorities lawfully accommodate and support a ‘failed asylum seeker with family’ or only the minor children of the family following the introduction of section 9 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004?
The Children's Legal Centre has produced an in depth briefing on the provisions of section 9 and section 35 of the new Act which covers this and other questions likely to arise. To download the briefing click here.
Section 9 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 ('The 2004 Act') inserts a new class of persons who are ineligible for support into Schedule 3 of the Nationality, Immigration and Asylum Act 2002 ('The 2002 Act'). Prior to the introduction of s. 9, failed asylum seekers with minor dependant children continued to be eligible for asylum support until removal from the UK, even where their asylum application and any appeal had been finally determined.
Section 9 of the 2004 Act permits the withdrawal of asylum support (including accommodation) from failed asylum seekers with families. This follows a five-stage process ending in 'certification' by the Secretary of State that the person has failed "without reasonable excuse to take reasonable steps to leave the UK voluntarily or place himself in a position in which he is able to leave the UK voluntarily" (e.g. by cooperating with re-documentation by the relevant embassy). Asylum support will be withdrawn 14 days after receiving such a certificate if no steps have by then been taken to depart voluntarily.
The local authority will be informed of those in their area who fall into this category by the UK Border Agency. It is clear, however, that Local Authorities will still be able to provide accommodation and support to the children of such a family.
The provision of accommodation only to the children of a failed asylum seeking family, and not to the family, would appear to conflict with notions of good practice which seeks to preserve the bond between parent and child and potentially with the 'best interests' principle. The Children Act states that in any action or decision relating to accommodation of the child, the best interests of the child shall be the paramount consideration. Effectively, social workers could be asked to separate children from their families simply because Section 9 has ended the lawful accommodation of the adult members of the family and the family has nowhere to live, rather than because there is a danger in the child remaining with the parent(s).
What will happen if parents refuse to consent to the child being accommodated separately from them?
A local authority can only accommodate a child under the age of 16 with the consent of those who hold parental responsibility. Thus, if a parent refuses to let their child(ren) be accommodated by the local authority (where the child is under 16 years old - see below for children over 16), the local authority have no power to insist that the child be placed in accommodation. The local authority cannot remove a child from a parent who holds parental responsibility without first obtaining consent of the parents OR obtaining a court order. The appropriate order in such cases would be either an interim care order or emergency protection order. However, if the local authority are to obtain such an order, even on an interim basis, it must show that it has reasonable grounds to believe that the child will suffer or may be at risk of suffering significant harm without such an order, AND that such harm is due to the care being given to the child not being that which is expected of a reasonable parent or the child is beyond parental control. The fact that the family has nowhere to live as a result of the failure of their asylum application is unlikely to fall within these grounds and thus the criteria for an interim care order or emergency protection order would not be fulfilled.
It is possible for the police to remove the child under a police protection order if they have "reasonable cause to believe that a child would otherwise be likely to suffer significant harm" (section 46(1) Children Act 1989). The police can only keep the child for a maximum of 72 hours.
Once a child is 16 they may themselves consent to being accommodated by the local authority even if a parent is unwilling to agree. In such circumstances the parent can rely on the child's consent.
Can the local authority provide accommodation to the children and the parents following certification as an alternative to accommodating the children only?
It would be normal practice (and in line with 'best interest' principles) to provide accommodation and support to a family who had no other means of support under section 17 of the Children Act. However, Schedule 3 of the 2002 Act specifically prevents the use of section 17 (amongst others) from being used for the support of 'ineligible persons' in this case the parents in the class of "failed asylum seeker with family". There is however an exception to the general rule under Schedule 3 of the 2002 Act that support can not be provided: "Paragraph 1 (of Schedule 3) does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of - (a) a person's Convention treaty rights, or (b) a person's rights under the Community Treaties."
Where a local authority would render a family 'destitute' by withholding support, with the effect that the Article 3 threshold (preventing an authority from subjecting someone to cruel, inhuman or degrading treatment) would be breached, it can be argued that they would be obliged to provide support to the extent of avoiding the breach.
The case law on the point at which a breach of Article 3 would take place, is the leading case on s.55 of the 2002 Act; 'Limbuela'. Following Limbuela, it is no longer necessary to prove that a person has been subjected to inhuman and degrading treatment by being rendered homeless and destitute but only that if support were to be withheld there would be no means for him or her to obtain accommodation and support from governmental, charitable or community sources or his or her own legal endeavours.
This means that following UKBA certification, the local authority will be in the position of assessing if the family can obtain accommodation and support from governmental charitable or community sources or the families own 'legal endeavours'. Where the local authority concludes that there is no support from any of these sources they could accommodate the whole family in order to avoid a breach of Article 3.
