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Asylum seekers
Asylum seeker means a person who has applied for asylum
under the 1951 Refugee Convention on the Status of Refugees
on the ground that if s/he is returned to his country of
origin s/he has a well-founded fear of persecution on account
of race, religion, nationality, political belief or membership
of a particular social group.
S/he remains an asylum seeker for so long as her/his application
or appeal is pending. Only after all appeal rights have
ended unsuccessfully, may the person be considered a failed
asylum seeker.
Asylum seekers cannot work and cannot claim welfare benefits.
They can apply to the National Asylum Support Service (NASS),
the government department responsible for destitute asylum
applicants, for basic food and shelter. Section 122 of the
IAA 1999 (as replaced by NIAA 2002 s 47) requires NASS (National
Asylum Support Service) support to be made available to
the households of destitute asylum seekers which include
dependent children under 18, and prohibits local authorities
from providing assistance under the Children (Scotland)
Act 1995 s22 and other provisions where NASS is or could
be providing it.
NASS support can be removed where the conditions of its
grant are broken. This could be because of causing nuisance
or breaching another condition of the support. Section 22
duties remain intact for children and families whose NASS
support has been removed for this reason.
Their entitlement has not been affected by the IAA 1999
or the NIAA 2002 because the exclusions apply where NASS
is or could be providing support.
Those who arrived before August 2000 and claimed asylum
in the country rather than at the port of entry are still
the responsibility of local authority social work services.
It is intended that they will be absorbed into the NASS
system.
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Unaccompanied asylum seeker children
The UN defines unaccompanied children as ‘those who are
separated from both parents and are not being cared for
by an adult who, by law or custom, has responsibility to
do so'.
The Home Office uses the term to describe a child under
18 (or if there is no proof, appears to be under 18) outside
their country of origin who is not accompanied by a close
relative (regardless of whether or not that relative usually
cares for the child).
This makes it a more narrowly defined term than ‘separated'
children in the UN Convention.
The Immigration and Nationality Directorate (IND) does
not consider a child to be unaccompanied if he or she is
being cared for by an adult prepared to take responsibility
for them.
The IND says it will involve social services in any case
where there is concern about the child's relationship with
the ‘responsible' adult.
They are not included in the definition of "asylum seeker”
while they are under 18 so there is no limitation on their
entitlement to Children (Scotland) Act support.
Local authorities have the same duties to young unaccompanied
asylum seekers (or separated children) as they would have
to any other children in their area who are unaccompanied
and/or separated from their families. So they are eligible
for the full range of support under the Children (Scotland)
Act 1995 and other provisions (see
legal resources on).
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