Failed asylum seekers restricted from Children Act support under new plans

Plans to stop children from being supported under the Children Act 1989 if their families’ asylum claims are refused will be debated in parliament today.

The amendment to the Immigration Bill, which passed its second reading on Friday, would mean families whose appeal rights have been exhausted, and whose circumstances are not deemed “exceptional” enough to be supported by the Home Office, will no longer receive a child-in-need assessment.

Safeguard and promote

Instead, families who local authorities decide are in need of services in order to safeguard and promote the welfare of a child would be supported under immigration legislation, provided by paragraph 10a schedule 3 of the Nationality Immigration and Asylum Act 2002.

Inconsistent system

The amendments passed on 17 November.

Jonathan Price, a researcher at the University of Oxford’s Centre on Migration, Policy and Society, said this change could reduce support and create an inconsistent system for vulnerable children.

“By taking the support for many families with no recourse to public funds outside of the Children Act framework and replacing it with immigration legislation, it takes the focus away from safeguarding issues. The assessments of need are likely therefore to be more limited in scope.

“A breadth of safeguarding issues at play with vulnerable children and families—exploitation, domestic violence, neglect—could go unnoticed under the new assessment framework.”

No recourse to public funds

Families with no recourse to public funds as a result of their immigration status are restricted from accessing mainstream benefits including welfare and housing.

They may have a right to support for accommodation and subsistence from social services departments if they would otherwise be destitute.

Price added there were questions around what level and type of support would be provided to meet the needs of children since the raft of case law discussing what will be provided for this group, under section 17 of the Children Act 1989, would no longer apply.

“At the moment, local authorities don’t have discretion—the law is very clear they must support destitute children. Under paragraph 10a, statutory duties are arguable because all of the case law won’t apply.

Open to interpretation

“It will be open to local authorities to interpret whether support will be necessary to safeguard and promote the welfare of dependent children, under an assessment process that is not yet defined. That is likely to lead at least in the initial stages to an inconsistency of approach between local authorities,” he said.

It would also be likely to lead to expensive litigation in order to challenge areas where there is a lack of clarity.

“If the intention of these changes is to reduce the numbers of families receiving support, that risks establishing a group of people in our community who face considerable safeguarding risks.”

It was also unclear who would carry out these assessments, he said, and it was possible it would be housing officers, rather than social workers who might be able to do more investigative work into the welfare, safety and development of the child.

Exploitation and neglect

Provisions under immigration legislation, unlike under the Children Act 1989, define need by basic measures such as the amount of money in your bank account and could miss complex areas of need like exploitation and neglect, Price said.

After its first reading, campaigners and local authority representatives raised concerns the Immigration Bill would not only place new unfunded burdens on local authorities, but would not ensure vulnerable children were safeguarded.

Immigration minister James Brokenshire wrote a letter to the chair of the Local Government Association (LGA) addressing some of these concerns.

He said he was confident the amendments would simplify the way local authorities deal with destitute families without immigration status.

He added only the subsistence and accommodation needs of families with no recourse to public funds would be excluded from the Children Act 1989.

“Section 17 of the Children Act will remain available to the local authority to deal with any other needs of the child or their family which the local authority considers must be met, to safeguard and promote the child’s welfare while the family’s immigration status is resolved, and where it is established they have no lawful basis to remain here,” he said.

Families who are considered to have a genuine obstacle to returning to their country of origin would continue to be supported by the Home Office under section 95a of the 1999 Immigration Act.

Unrealistic changes

But councillor David Simmonds, chair of the LGA’s children and young people board, said he was not confident a “relatively modest” amendment would solve the problems authorities are facing or “suddenly mean these young people are no longer their responsibility”.

“There is a question of whether these changes are realistic. Are MPs genuinely intending to vote through Parliament a bill that says certain children,  because of their immigration status, will be uniquely disadvantaged?

“It is highly unlikely Parliament really wants to do this. We are extremely clear we have an unambiguous duty of care under UK law and it is likely children would have to be supported anyway under other areas of legislation.”

He said the Home Office needed to have a proper plan for what happens to people when their claim is refused and support is withdrawn, including prioritising any local authority supported cases for removal.

The amendment also proposes the removal of accommodation, financial support, ‘staying put’ provisions and a pathway plan for former looked after children with no immigration status when they turn 18.

This article was updated on 19 Nov to reflected the amendment had passed