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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