Children in care with immigration issues

A child with an immigration issue may end up in care for the same reasons as any other child, such as family breakdown, for child protection reasons, or because they have been abandoned.

When a separated child is taken into care, they will normally be accommodated under section 20 of the Children Act 1989, although there may be times when a care order under section 31 is more appropriate (e.g. in the cases of very young children, victims of trafficking or children with learning or capacity issues).  For more information about a local authority’s general duties with regard to looked-after children, see our fact sheet on asylum-seeking children in local authority care.

Most children who are in care do not have anyone acting as a parent in any respect. Whilst a local authority may take on the ‘corporate parenting’ function with regard to accommodation, education and welfare, a child’s immigration status is often ignored. This is particularly the case where a child does not seek asylum, or where a child has been in the UK for most or all of their lives.

If a child is looked-after and accommodated by the local authority, then the local authority will be expected to pay for any immigration advice required for the child. Unfortunately, immigration advice is largely no longer covered by legal aid. There are provisions for looked-after children to be fee exempt for application fees, but a legal adviser will need to be paid for the advice and preparation of such an application. See our fact sheet on finding a legal representative here.

It is crucial that children in care receive immigration advice as a matter of priority and that this is considered in any care plan, assessment or pathway plan as a matter of urgency. Obtaining this advice in time is vital to ensure that the child’s best interests are met. If advice is not sought, this can have devastating consequences for the child and have a severe impact on their development in the future.

If a child is not assisted to obtain legal advice, the local authority will be in breach of its duties toward the child. A child will lose access to a number of arguments which could be made in relation to immigration status once they turn 18. In the past year, the failure of several local authorities to properly assist looked-after children to obtain legal advice in time has led to Ombudsman decisions against those authorities, with compensation paid to the young people affected.

Just as there may be a number of reasons for a child being taken into care, the immigration status of that child will also be different depending on their circumstances. For example, the child may have come to UK as a visitor and is now an ‘over-stayer’;  they may be in the UK as a dependent on their parent’s work or study visa, despite suffering family breakdown; or they may even have been born in the UK but have never had  their immigration status or nationality addressed.

It is absolutely vital that the immigration status of the child and any consequent legal advice and action needs are considered at the very beginning of the Local Authority care planning process.

If a child is in care (‘looked-after’), and is unlikely to be returned to the care of their parent or carer in this country or any other, then social services would be expected to plan to meet the child’s needs in both the short and long term. For a child with an uncertain immigration status, it will be crucial to resolve any immigration issues as soon as possible. As the child gets older, immigration status problems will come to affect his or her rights and entitlements moving forward into independence. Opportunities for resolution of status also change and become more restricted once the child becomes an adult ‘care leaver’.

Anyone in the UK without permission to stay in the UK is in theory liable to removal from the UK. However, both the Home Office and the local authority have a duty to safeguard children’s welfare and they would have to be properly satisfied that there were fully adequate arrangements, such as functioning social services or real family support, in the child’s home country, before considering returning a child to their country of origin. Every case will be different. If removal is being put forward as a real possibility, it is important that the child receives good quality legal advice so that they can make an informed choice based on their options.

For more information, see our pages on applications for:

• asylum
• British nationality
• immigration status on the basis of human rights (Article 8)
• status on the basis of being an EU national

The child’s immigration status should be dealt with in any assessment and care plan by the local authority. It is good practice for immigration status to have its own section in the needs assessment/care plan ensuring that this likely high risk/high need issue does not get subsumed in some other generalised category such as identity and family relationships.

It is important that double or triple planning is considered good practice – i.e. contingency planning to cover what may happen following particular outcomes. As an example, a child should be assisted to consider whether to accept a grant of limited leave to remain or appeal to try to get indefinite leave to remain, or ask to be supported to become a British citizen. There can be ‘overlap’ issues, for example with regard to the effect of a certain status on access to student finance, and therefore a young person’s ability to pursue a university education. Usually the task for the social worker will be in identifying points of worry or risk with the young person, and planning to get specialist legal advice on such matters.

A child’s immigration status will not affect their rights to be cared for by the local authority, to access compulsory education or to access primary healthcare. However, immigration status will affect the child’s access to student finance, mainstream benefits and right to work, so immigration status issues become more relevant and urgent as the child turns into a care leaver aged 18.