The best interests of refugee and migrant children in the UK

Kamena Dorling Migrant Children’s Project

Coram Children’s Legal CentreOctober 2012

MIGRANT CHILDREN IN THE UK

1,500 – 3,000 unaccompanied children claim asylum each year (Home Office statistics)

Estimated 5,000 unaccompanied asylum-seeking children in London alone (Mayor of London, 2010)

120,000 children with irregular immigration status (University of Oxford, 2012)

UN CONVENTION ON RIGHTS OF THE CHILD

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration” (Article 3(1) )

UK ratified in 1991 – but with reservation regarding children subject to immigration control

Clear message that migrant children were immigrants first, children second

Reservation withdrawn 2008

DOMESTIC LAW & POLICY

Section 55, Borders, Citizenship and Immigration Act 2009 placed duty on UK Border Agency to “safeguard and promote the welfare of children who are in the United Kingdom”

In 2010, UKBA revised and improved policy and guidance – including reference to UNCRC & need to treat the best interests of the child as a primary consideration.

BUT, immigration control still the priority – and best interests “not the only consideration”

SUPREME COURT JUDGMENT

ZH (Tanzania) – deportation case

Judgment set out weight to be given to best interests

“It is not merely one consideration that weighs in the balance alongside other competing factors... the primacy of this consideration needs to be made clear in emphatic terms.” (Lord Kerr, para 46)

Children’s views must be heard, and their interests placed at centre of decision making process

ASSESSING ‘BEST INTERESTS’

Supreme Court held that ‘best interests’ “broadly describes the well being of a child”

(as in UNHCR Guidelines)

Must look at “the solidity of social, cultural and family ties with the host country and with the country of destination”

(Uner v The Netherlands, ECHR, 2007)

ASSESSING ‘BEST INTERESTS’

Must consider: Level of child’s integration into host country Length of absence from other country Where/with whom child to live & how to be cared for Strength of child’s relationships with parents or other

family which will be severed if has to move Whether a national of the country by birth & potential

deprivation of citizenship Potential social and linguistic disruption Loss of education opportunities

ASSESSING ‘BEST INTERESTS’

UK Border Agency must pay more than ‘lip service’ to concept of ‘best interests’

Immigration control does not ‘trump’ best interests

Voice of the child must be heard

Problems: Access to legal advice Change to Immigration rules