A child who is under the age of 17 ½ and who has applied for asylum but been refused refugee status and humanitarian protection will be granted a form of limited leave if there are no adequate reception arrangements in the country to which they would be returned. This kind of leave is called UASC leave, despite the fact that the child is no longer an unaccompanied asylum-seeking child (UASC) because their asylum claim has been refused.
UASC leave is granted for a period of 30 months or until the child turns 17 ½ years old, whichever is shorter.
It is very important that children whose UASC leave is soon due to expire apply for further leave before their current leave expires. For those nearing the age of 17 ½ this would not be an application for further UASC leave (as they would soon be an adult) but an application for an extension of leave to remain in the UK as a person who was refused asylum but given another type of permission to stay in the UK. Such an application should be made within 28 days of the end of their leave period.
Legal representation for the further leave to remain application should be sought 3-6 months before the UASC leave expires. This will allow a solicitor or immigration adviser to prepare the application for further leave properly and submit the application in time.
A young person will need to have accrued ten years leave to remain before being eligible for indefinite leave to remain (‘settled status’). It is therefore unlikely that a child granted UASC leave will become eligible for settlement without varying their status at some point.
No, UASC leave and Discretionary Leave are not the same. The information in relation to UASC leave is only relevant if the child or young person was first granted leave after 9 July 2012. If the child received their initial grant of leave prior to 9 July 2012, they would have been granted ‘discretionary leave to remain’ for three years. The reason that this is important is because they will be on a different route to settlement. They will be on a six year route to settlement under the Home Office’s ‘Discretionary Leave’ policy. This includes leave accrued while awaiting a decision or appealing a subsequent negative decision.
The Home Office now very rarely grants Discretionary Leave to children who have claimed asylum but been refused refugee status.
A child who receives a decision on their claim for asylum when they are over 17.5 years old but before they turn 18 is treated by the Home Office as a child for the purposes of determining their asylum claim. However, if the child is refused asylum or humanitarian protection they will not be granted UASC leave if they are between 17.5 and 18 years of age. If they are refused asylum or humanitarian protection they will normally get a right of appeal against that decision.
If a child applies for asylum when they are under 18 the Home Office must treat them as a child. However, once the child turns 18, child-specific policies and procedures no longer apply. For example, if the child claimed asylum and had not been substantively interviewed by the time they turned 18, they would not receive child-specific protections at their interview unless their solicitor made representations as to why this should be provided.
Further, if the Home Office makes a decision on the asylum claim when the child has turned 18 and the asylum and humanitarian protection claim is refused, the Home Office will not grant the child UASC leave. The Home Office will also make a decision on risk on return on the basis that the young person was returning as an adult, rather than as a child, to their country of origin.
However, the Home Office should still consider the elements of an asylum claim on the basis that any exploitation or trauma that occurred was experienced by a child. This must be taken into account alongside other factors such as culture and levels of education when assessing credibility and determining an asylum claim.
The Home Office sometimes takes a long time to make a decision on someone’s asylum claim. In a child’s case there should not be a long delay. A delay can seriously prejudice a child’s case because it may preclude them from being treated as a child when their claim is decided and from being granted UASC leave. If there is a delay in the Home Office making a decision, the child’s solicitor may chase the Home Office to try to get the decision made while they are still a child.
