12 May 2021
The proposed new immigration plan by the UK Government will trample on the rights of some of the most vulnerable children in Northern Ireland, breaching international obligations, domestic laws and devolved matters.
The changes depart from a range of international obligations and standards such as the 1951 Refugee Convention, the European Convention on Human Rights, the UN Convention on the Rights of the Child (UNCRC) and the Council of Europe Convention on Action against Trafficking in Human Beings. They contradict a number of domestic laws, including the Borders Citizenship and Immigration Act 2009 and the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015. Significantly, for Northern Ireland, the plan also encroaches on devolution; trampling powers held by a number of NI Executive departments, statutory bodies and the courts.
This is the analysis of specialist immigration solicitors within the Children’s Law Centre. The Children’s Law Centre’s immigration solicitors provide advice in relation to looked after children who are in the care of social services and whose immigration status is insecure. They also advise and represent the vast majority of unaccompanied asylum-seeking children (UASCs) in Northern Ireland, working with the Health and Social Care Board, all five Health and Social Care Trusts in Northern Ireland and Barnardo’s Independent Guardian Service. The team within the Children’s Law Centre holds extensive experience in representing unaccompanied asylum-seeking children who have been subject to the asylum application, National Referral Mechanism and other immigration application processes.
What is the New Plan for Immigration?
The proposed plan includes a number of major changes including:
- A two-tiered system for people arriving in the UK.
- The introduction of temporary protection status.
- Significant changes to processing procedures.
- Changes to referral mechanisms.
- New enforcement methods.
Many of these new changes will hit children the hardest, including separated children, UASCs and the children of asylum-seeking families. The result will see the diminution of children’s rights, including safeguarding rights and the legal child protection framework. Traumatised children will be put at risk of abuse, neglect and destitution, as well as a heightened risk of trafficking and re-trafficking.
The Watering Down of Child Protection and Safeguarding Duties
The new plan, if implemented, will create a number of new bodies with a range of powers. One of the most significant in relation to children is the National Age Assessment Board (NAAB). Where the primary duty of age assessments, currently carried out by social services, is to protect children, the NAAB will focus on immigration control. The Children’s Law Centre, and a wide range of community and civic organisations believe this is going to have a devastating impact on the well-being of children. It will dramatically increase the risk of vulnerable and traumatised children being held in detention centres, instead of getting the support they need for social services. The NAAB also opens the door to dubious age assessment methods that are entirely opposed by medical professionals and the UN High Commissioner for Refugees.
Another significant change will include a new ‘one-stop’ process that will curtail appeal rights by requiring frightened and traumatised children to immediately reveal the totality of abuse and harm they have endured. This is going to have a number of significant implications for UASCs in particular by introducing cut-off points around entitlements to protection. With many UASCs being extremely traumatised, it can often take time for them to ‘open up’ about their experiences of trafficking and abuse. This could now have implications for their access to protections. Excluding children from entitlement to safeguarding and protection from abuse is inhumane and a clear breach of Article 3 of the UNCRC and section 55 of the Borders Citizenship and Immigration Act 2009.
The proposals to withdraw financial support for asylum seekers who are deemed by the Home Office to have ‘failed’ to gain status is also deeply worrying, signaling a system of enforcement driven by the starvation and destitution of children.
Then there are additional plans seeking to erode protections for stateless children and raising the standard of proof for persecution. It is also alarmingly unclear whether detention for non-compliance with immigration rules will apply to children, or that separated children and UASCs could be placed in the newly expanded asylum estate when they turn 18. This all paints a bleak picture for the shift towards removing rights and protections from seriously vulnerable, traumatised and at-risk children.
The Heightened Risk of Trafficking and re-Trafficking
Rather than any pretence of streamlining the immigration process, it is clear to everyone outside the Home Office that the new plan will heighten the risk of trafficking and re-trafficking of children. By raising the ‘reasonable grounds’ threshold for sign-posting a child to be the victim of trafficking, children are being placed at risk of exploitation by preventing them from accessing necessary protection and support.
Separated children and UASCs may also, by the nature of their journey, be eligible for no more than temporary status under the new changes. This is due to the lack of a legal route for children to reunite with family members, described as a ‘blanket prohibition’ in the UK. This already drives vulnerable children towards trafficking, but failure to gain full status after arrival would heighten the risk of exploitation even further.
The plan completely fails to address this risk to children entering the UK. This is not a small number of vulnerable children either. Between 2010 and 2018, over 10,000 separated and unaccompanied children were granted asylum or some other form of protection in the UK. Rather than looking at how these children can be protected, the plan could be viewed as an attempt to close off the route altogether by increasing the risk of exploitation or detention of vulnerable children.
The Encroachment on Devolution
For Northern Ireland, the plan also encroaches on transferred matters under the devolved settlement. The creation of the NAAB in itself seems to ride roughshod over duties to protect children under NI law. In Northern Ireland, Social Services have a duty to conduct age assessments for the purposes of assessing what duties are owed to children under The Children (Northern Ireland) Order 1995. However, the NAAB attempts to supersede this legislation and create a new process for conducting age assessments based on border control.
The new plan for immigration also looks troubling in its approach to trafficking. Again, trafficking is not a reserved matter, it is devolved. The identification and protection of victims, and the prevention of trafficking, are duties that fall to the Police Service of Northern Ireland, the Public Prosecution Service, the various Health and Social Care Trusts, the Independent Guardian Scheme and the Northern Ireland Court Service. All issues that fall under the control of the Executive.
A Dubious Consultation Process
Finally, it is unclear or perhaps even unlikely that the consultation process for the new immigration plan fulfilled legal requirements. With a lack of detail often apparent in the proposals, a lack of time for respondents to properly complete their responses and a closed process around the opportunity to respond, meaningful engagement was significantly curtailed. A fait accompli presented to respondents.
There is almost universal opposition to the majority of the plans. This was clear throughout the consultation process. It is now down to the UK Government to engage meaningfully with the submissions that are received and to take them on board before any new legislation is introduced.