Immigration law and social care

Several important developments in case law have increased social workers’ involvement in service provision and age determination, writes Ed Mitchell

Over recent years, immigration law has impinged on social work with children and families. This has been driven by legislation linking entitlement to social care with immigration status and the difficulties of planning services for a family with a precarious right to remain in the UK. The result is that many social care workers need to keep abreast of developments in immigration law.

Child or adult?

Age is important in asylum support. The needs of a young person at 17 are unlikely to differ much from their needs at 18. But for unaccompanied young people seeking asylum, being categorised as a child or adult affects how those needs will be addressed. Councils care for children under the Children Act 1989 whereas adults look to central government for s­upport. In practice, those deemed children can expect better accommodation and support.

In R(A) v Croydon LBC (2008) the Court of Appeal considered whether, for the purposes of Children Act support, local authorities or the courts were to make decisions as to a young person’s age. The court decided that the “question is properly entrusted to social workers”. The courts will only interfere with an age assessment on its merits if it is irrational.

The seven-year policy

The UK Border Agency had a policy about enforcement of immigration controls that would involve deporting children who had lived with their families in the UK for a long period of time. Given its importance, the exact nature of the policy was surprisingly hard to pin down.

It was finally clarified by the Court of Appeal in NF (Ghana) v the home secretary (2008). The upshot was that where a child had lived in the UK for at least seven years “it is only in exceptional cases that indefinite leave to remain will not be given” to the family.

But no sooner had the policy been clarified than it was withdrawn by the government last December. However, it appears to accept that applications for leave to remain that were “in the pipeline” at that date, of which there are many, should still be assessed.

Family break-up

The withdrawal of the seven year policy does not mean that children who have lived in the UK for longer than seven years, and their families, will be deported. Indeed, sometimes a period of residence of less than seven years may be relied on to resist deportation. This is illustrated by the Court of Appeal’s decision in VW v the home secretary (2009).

VW, now aged 23, entered the UK from Uganda aged 15 and claimed asylum. Her claim was refused but she was granted leave to remain until 18. She remained in the UK and at 19 had a daughter with a British citizen (and so the daughter was a British citizen). VW applied for further leave to remain, but was refused. VW and her husband decided that, if the refusal stood, the daughter would stay in the UK with him and VW would return to Uganda. The Court of Appeal overturned the refusal of leave to remain and as a result the family are entitled to stay together in the UK. The extent of the interference with the family’s right to respect for their family life (under Article 8 of the European Convention on Human Rights) that would be caused by splitting-up the family could not be justified.

Ed Mitchell is a solicitor and editor of Social Care Law Today

Published in the 12 February 2009 edition of Community Care under the headline Changes to Immigration Law put onus on Social Services