The 17-year struggle for the rights of asylum-seeking children is over, and campaigners are celebrating victory. Sally Gillen finds out what it means for frontline staff
The government has lifted its reservation to the application of the United Nations Convention on the Rights of the Child’s to asylum-seeking children, marking a triumphant end to a 17-year battle for campaigners.
The Convention on the Rights of the Child enshrines universal rights and, in signing it, parties have agreed to consider the best interests of the child in all actions undertaken.
Now, children seeking asylum will be entitled to the same protection and access to services as other children and benefit from the “best interest” rule, under article three of the convention, in the same way as British children.
In what is seen as a moral victory, campaigners have lined up to celebrate the end of a long struggle. Children’s commissioner for England Al Aynsley-Green is among those who welcomed the long-awaited change, saying: “We have been concerned that this particularly vulnerable group of children have been exposed to a draconian system for too long.”
Restricted access to services
The plight of asylum-seeking children, too often seen as immigrants first and as children second, has been evident by the many reported cases of restricted access to services, including health and social care.
Judith Dennis, policy adviser at the Refugee Council says: “Social workers and other professionals have often felt tremendous confusion about the entitlements of asylum-seeking children.” The organisation was recently contacted by a headteacher who believed her school was not allowed to teach asylum-seeker children, she says.
Frontline social workers who may previously have felt political pressure from senior officers in their local authorities to provide a lesser service should now feel more confident about arguing for equal access to services, says Dennis.
In recent years social workers have struggled to work within a system which conflicts with core and traditional social work values, at times defying the government over its immigration policies.
Opposition to section nine
The widespread opposition to section nine of the Asylum and Immigration Act 2004 was a clear demonstration of the dilemma faced by social workers.
Under section nine, benefits could be removed from asylum seekers whose applications had been rejected if they had not taken “reasonable steps” to return to their country of origin.
The knock-on effect was that they became destitute, and at risk of having their children taken into care.
Social workers said they would refuse to act on the policy and pledged to campaign nationally to prevent its implementation.
Bridget Robb, professional officer, England, at the British Association of Social Workers, says the withdrawal of the reservation to the UNCRC has been well received.
“It has been difficult until now,” she says. “People were feeling they could not give full services because of the barriers. The awareness that they can provide equal services to these children will make an enormous difference.
“We are already getting feedback from frontline social workers. There is more planning and thinking about processes. They are thinking about how the children will be supported and their needs assessed. So many people have been waiting for this to happen. It has been such a frustration for social workers.”
Robb says that, despite suffering trauma and loss, asylum-seeking children have not always had access to mental health services, such as counselling, and other support services and believes this is one of the ways in which they may now benefit.
Pinpointing specific changes to practice is not possible just two months after the reservation was withdrawn, but there is hope that in the long-term it will influence government policy affecting the rights of asylum-seeker children to services. Some say, however, that the UNCRC is not legally binding under UK law, and its significance is at this stage largely symbolic.
Katy Swaine, legal director at the Children’s Rights Alliance for England, says: “There are limited sanctions if the government doesn’t comply with the convention. The only direct sanction is that government is embarrassed every five years by the UN committee’s report. However, UK courts should (and regularly do) take the convention into account when interpreting children’s rights under other provisions such as the Human Rights Act.”
Best interests of the child
Barrister Sandhya Drew, also believes its impact in a legal sense could be significant: “The Convention on the Rights of the Child can now be used by the courts and public authorities to give clearer meaning to the relevant articles in the Human Rights Act 1998 as regards children’s rights. Article 37 states: ‘The best interests of the child will now need to be a primary consideration (i.e. not welfare)’,” she says.
“Withdrawal of the reservation will hopefully put an end to some of the worst neglect highlighted in recent reports such as the Ecpat UK report, Missing Out, which revealed significant numbers of children subject to immigration control going missing from care.”
Its impact is likely to be tested in the courts in cases involving the detention of children, a practice long criticised by children’s rights groups. About 2,000 asylum-seeker children are detained every year, at a cost to their education and health, as repeatedly highlighted in inspection reports.
In August, prisons’ chief inspector Anne Owers criticised conditions for children in detention centres, listing a catalogue of concerns about those held at Yarl’s Wood, near Bedford.
In her report, Owers highlighted “serious concerns” about the lack of specialist healthcare, adding: “An immigration removal centre can never be a suitable place for children and we were dismayed to have found some children spending large amounts of time incarcerated.”
Inspectors were told that some children were detained overall for as long as 275 days. They were in many cases withdrawn and showing other signs of distress.
By using the UNCRC with other legislation those fighting for the rights of asylum-seeking children should be in a stronger position. In the months ahead, we will see whether this hard-won equality is symbolic or will make a real difference to the lives of asylum-seeker children.
ABOUT THE CONVENTION
The UN Convention on the Rights of the Child (UNCRC) is an international human rights treaty that applies to all children and young people aged 17 and under.
It is the most widely ratified international agreement and gives children and young people a host of civil, political, economic, social and cultural rights which countries that have ratified it are expected to implement.
The UK government ratified the UNCRC in 1991. However, when it did so it entered a general reservation relating to immigration and citizenship which allows it to apply legislation relating to immigration without having to have regard to the principles and provisions of the UNCRC – legislation that will affect children seeking asylum, trafficked children and all other children subject to immigration control.
The UN Committee on the Rights of the Child, the UN treaty monitoring body for the UNCRC, has twice strongly criticised the UK’s reservation in the past.
This article is published in the 13 November 2008 edition of Community Care under the headline “End to a draconian system”