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Asylum Seeker Children

BRIEFING PAPER

Background

UNISON Scotland, along with other organisations and individuals, has condemned the treatment of failed asylum seeker families by the immigration authorities, particularly the practice of removal by dawn raids.

In response to these concerns, the First Minister has stated that where a family with children under 16 is to be deported, best practice should be established that involves education and social services in advance of any action being taken by the immigration authorities, to ensure that the rights of children and the concerns of their friends and teachers are taken into account. The Scottish Executive is in discussion with the Home Office regarding this matter.

The issue was raised at Scottish Council in Dec 2005 and Council undertook to seek clarification from the Scottish Exec as to what the above proposals might entail and the implications for UNISON members in social work.

Since then members of the Social Work Issues Group have been discussing this matter via email, to identify the key issues with a view to establishing an ethical position upon which to provide advice and support for members who may be asked to be involved in any proposed protocol.

Agreed principles

The following principles have been established as a basis for further discussions

  • UNISON members can have no role in the actual deportation process and will not be involved in uplifting children and taking them to a removal centre.
  • UNISON members should have a role in promoting the rights, welfare and protection of the children of asylum seekers whilst they are living in this country. It is considered that a failure to do so would collude with the apparent view of the Home Office that these children have no rights. This may include providing an assessment of need.

Consequently SWIG has been exploring how best to promote the welfare of the children of asylum seekers in a way which is not collusive with the current policy and practice of the Home Office and which is consistent with social work ethics and values.

Action taken

Meeting with representatives of the Scottish Executive

On 17th Jan 2006, in response to a request by UNISON Scotland for discussions on the issue of failed asylum seeker families, a meeting was held between UNISON representatives and civil servants from the Scottish Exec. This was a helpful meeting which allowed UNISON to understand the basis on which the talks between the Scottish Executive and the Home Office have been set up and to outline the concerns of our members. We advised that we would want to ensure that any action our members would be asked to take would promote the rights and welfare of the children, rather than collude with Home Office decisions which did not place the child's welfare as paramount; and that we would expect professional assessments in respect of the needs and welfare of children to be given due weight.

The Scottish Exec representatives explained that discussions with the Home Office are still at an early stage. They are awaiting a date for further talks with the Home Office and agreed to meet again with UNISON once these have taken place and firmer proposals are on the table.

From the meeting we were left with the impression that the Scottish Executive are looking for a positive way forward and listened to what we had to say. However, we felt it would be useful to look at ways to try and influence the Home Office to look meaningfully at a protocol which will ensure that the rights and welfare of the children of failed asylum seekers is taken into account in decisions to deport.

Meeting with Rory Macpherson, Thompson's Solicitors

On 27th Jan 2006, representatives of the SWIG met with Rory Macpherson to discuss the legal position in relation to child care legislation and immigration and asylum law. We were interested to know what action in relation to the children of asylum seekers the Children (Scotland) Act can support in respect of:

  • Assessment of need
  • Promotion of child's welfare
  • Child protection - emergency and long-term

Also, how it sits with immigration and asylum legislation.

The points below were the issues we took from the meeting and should not be seen as definitive statements on the law.

The Children (Scotland) Act 1995 holds the welfare of the child to be paramount. This always involves a level of assessment. It is clear that the Act applies to any child in Scotland, irrespective of nationality or status.

With respect to assessments of need we were advised that whilst the Children (Scotland) Act allows for this, it may be that even where an assessment identifies significant need, it would only influence the timing or method of deportation and perhaps the services required in the country of origin and would not necessarily prevent it. Only if we could evidence a likelihood of significant harm to a child if deported, would there possibly be a challenge to deportation. It was suggested that it might be of greater benefit to be involved in such assessments at an earlier stage of the process, before a final decision to deport has been taken and all appeals exhausted.

We explored issues around any children who may be deemed to be in need of ‘compulsory measures of supervision' due their current circumstances and children who may face a risk of ‘significant harm' if deported.

We were advised that children of asylum seekers can be referred to the reporter in the usual way if it is considered they may be in need of "compulsory measures of supervision." However, it will be up to the reporter to determine what action to take. If children are placed on a supervision requirement at home with parents who are about to be deported, it was Rory's view that this in itself would not prevent deportation. Rather social work staff and the reporter would be required to take the same action they would take, if, for example, a child and their family were emigrating to Australia. He advised us that it is not competent to assume that the countries to which families may be deported are without their own perfectly adequate social, education and health services, though this would require to be checked out.

We gathered that where social workers believed that a child may be at risk of "significant harm" as a result of deportation, it would be open to them to present evidence to a Sheriff, as in the case of any child in Scotland. However, it would still remain the decision of the Sheriff as to whether to grant a Child Protection Order. Rory thought it would be unlikely that a Sheriff, knowing the child was about to be deported, would not consult the Home Office.

It would of course be open to a child of 12 or over to instruct their own solicitor, but this would be more effective at the stage before a decision to deport has been taken. It may be that solicitors representing families in this kind of situation may not have considered that possibility and there is a role for us to disseminate that information.

Tasks from the meeting

  • To liaise further with other organisations (eg BASW and International Social Work organisations)
  • To learn more from the England experience (acknowledging that the difference in the legal situation in Scotland may give us more options)
  • To link with the Ethnic Minorities Law Centre and any other relevant immigration support services.
  • We agreed to keep Rory Macpherson updated on developments.

Other consultations

Children's Commissioner:

The Children's Commissioner is not in a position to give legal advice in relation to this issue, but gave her perspective on children's rights and how they might apply in this situation. Her understanding is that Sec 22 of the Children (Scotland) Act does provide for an assessment of need in relation to the children of failed asylum seekers, even although the Nationality Immigration and Asylum Act 2002 has prohibited local authority assistance to asylum seekers under that section. However, this restriction does not apply to a "child."

Whilst she understands the concerns about the ethics of such an assessment if it may not be directed towards the child's welfare, she suggests it may be relevant to decisions about the timings and modes of removal, and perhaps in some cases to the removal itself.

BASW:

Ruth Stark advised that BASW is actively involved in these situations in England and Wales where this has been a hot issue for some time. However, she was not aware that UNISON has been involved so far. She advised that the concerns have always been around the assessment of where children will be returning to, as they are often being returned to very hostile environments without any assessment being done. They use networks of social workers contacted through the International Federation of Social Workers to verify situations.

BASW's position is that they will support their members in acting in the best interests of the child and that members will have their full legal backing provided they follow the BASW code of ethics. This would include BASW supporting members who assess that it is in children's best interests to remain in this country and act accordingly.

We have asked for further details of any written advice for their members and any examples of where practitioners' assessments have come into conflict with Home Office decisions to deport. We think it would be helpful to have some further discussion with BASW about this.

Ethnic Minorities Law Centre

The solicitor consulted was very helpful about immigration and asylum law and thought it would be worth testing out the provisions of the Children (Scotland) Act against asylum and immigration legislation. Again it may be worth having further discussions about this with agencies such as the EMLC, whose solicitors work with the full complexities of the immigration and asylum laws.

The way forward

The following action is proposed.

  • Discuss these issues with UNISON colleagues down south to find out what action, if any they are taking in relation to this matter and to seek their support and advice about how to put pressure on the Home Office
  • Seek advice from Labour Link about how to put pressure on the Home Office in relation to this matter.
  • Raise this matter with the STUC and link in with any relevant international contacts which the STUC may have.
  • Seek a formal meeting with interested parties in Scotland about this issue, including the Children's Commissioner, BASW and the Ethnic Minorities Law Centre.
  • Continue to debate and discuss this issue within SWIG and Scottish Council.
  • Meet again with the Scottish Exec once they have progressed matters with the Home Office.

Issues to explore further

  • We need to explore further how social work staff can best apply their responsibilities under the Children (Scotland) Act to promote the welfare of children in such situations.
  • We need to consider whether there may be benefits to professional involvement in an assessment in the early stages of the appeals process and what the implications of this would be for our members.
  • We need to consider the benefits to children and their families in providing assessments after a deportation decision has been taken and the appeals process exhausted; for example, in terms of influencing the timing and mode of the removal and in having a role to ensure that services are in place in the country to which children are being returned, even if deportation cannot be prevented in any but a small number of cases.
  • Where an assessment of need is undertaken and then ignored, we need to find out what measures a social worker could take to further advocate for the welfare of the child. We are advised that where any action taken by a worker is consistent with their code of practice, then this would protect them from any comeback but this will require to be confirmed in detail. If no action is open to the worker, this raises the question of whether this could be viewed as collusion with the process.
  • We need to consider further how Scottish child care legislation can be used to stop deportations.
  • It would be useful to explore further the issue of legal precedence between child care legislation and asylum and immigration legislation.

We would welcome views on all the matters discussed in this paper.

Kate Ramsden, Stephen Smellie and John Stevenson
SWIG

 

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