A refuge for children?
The impact of the Immigration and Asylum Act
The number of people seeking asylum in the UK has increased dramatically over recent years and the asylum system has been characterised by delay, confusion, inconsistency and inefficiency. Against this backdrop the Government laid out its plans to 'modernise' asylum procedures in its White Paper Fairer, Faster, Firmer, which culminated in November 1999 with the passing of the Immigration and Asylum Act. Terry Smith assesses the Act's implications for children and shows how it is contrary to the spirit of the United Nations Convention on the Rights of the Child.

Introduction
New immigration procedures
New support arrangements
Conclusion

Introduction
As we enter the new millennium it is sobering to think that there are probably more displaced persons and refugees than at any other time in history. Currently the United Nations High Commissioner for Refugees (UNHCR) estimates that about 24 million people either seek protection beyond their national borders or are displaced within their own countries. Although estimates indicate as few as 5-6 per cent of this total figure seek safety in the developed countries of the West, the number of people claiming asylum in the UK has increased from about 4,000 in 1988 to just over 32,000 in 1997. Given that UNHCR figures show that slightly more than half the world's refugees are children, it is simply inconceivable that any piece of legislation relating to asylum would not have a considerable impact upon this particular group. It is thus disappointing that no mention is made in the Immigration and Asylum Act of the 1989 United Nations Convention on the Rights of the Child (CRC).

The system of asylum in the UK is currently in crisis. Indeed, the Home Secretary referred to it in his introduction to Fairer, Faster, Firmer as a shambles. In light of this, several of the Government's legislative aims should be welcomed. However, the Act seems to reflect the Government's perception that large numbers of economic migrants are drawn to the UK and, in its determination to address this matter, appears to undermine commitments to the 1951 Geneva Convention on the Status of Refugees.

New immigration procedures
Part 2 of the Act extends the existing carrier's liability provision to penalise carriers who allow people to enter the UK clandestinely concealed in vehicles by imposing financial penalties on those who facilitate the entry of persons who claim asylum or who avoid immigration control. It is reasonable to assume that, in consequence, hauliers will evict anyone found in their vehicles and it is recognised that some asylum-seeking children arrive in the UK hidden in the backs of lorries. A child fleeing persecution is likely to remain at risk if evicted while remaining within the frontiers of the country from which she or he is fleeing. However, eviction at any stage of the journey raises concerns about the welfare of children, as they are unlikely to be handed over to the responsible authorities. Children would be open to exploitation and would be at risk if exposed to the elements when existing problems, such as health complaints or malnutrition, would be exacerbated. This contravenes Article 6 of the CRC, the child's right to life; and Article 19, the state's duty to protect children.

Section 28 of the Act makes it a criminal offence to obtain, or seek to obtain, leave to enter or remain in the UK by deception. This Section may affect asylum-seeking children if they attempt to gain entry or leave to remain by using false documentation. The 1951 Convention on the Status of Refugees recognises that those fleeing persecution must sometimes travel with false documents in order to flee dangerous situations. Children often have no choice other than to use false documents, perhaps because they are unable to apply for genuine documents in their own right or because it would be dangerous to do so. Documents may have been destroyed in attacks on property or lost in flight or children may simply not have had access to their documents if their parents are dead or missing. It is possible that children do not know that documents are false if given to them by a trusted adult. It thus seems harsh to punish children for attempting to use false documents to gain entry. Criminalising children who present false documents contravenes Article 6 of the CRC, the child's right to life.

Part 7 of the Act extends powers of search, arrest and entry to immigration officers. The arrest and search of juveniles in non-immigration settings is regulated by the provisions of the Police and Criminal Evidence Act 1984, thus ensuring that children are dealt with in a manner appropriate to their age and understanding. However, the Act fails to outline what steps, if any, will be taken to safeguard children under this Section and there is a risk that children who are arrested or searched will be confused, frightened and ill-advised about their rights as children. This contravenes Article 40 of the CRC, where states must take into account the child's age in the administration of juvenile justice and the child's right to be informed promptly of the charges against her/him.

As a mechanism to aid the removal of failed asylum applicants, a direct consequence of Part 8 of the Act will be the increased use of detention. It is probable that more children will be detained under immigration powers. Detaining children contravenes Article 37 of the CRC. Children should only be detained as a measure of last resort, for the shortest possible period of time in a manner that takes into account their age-related needs. They should be separated from adults (unless it is otherwise in their best interest) and have the right to prompt legal assistance.

Part 4 of the Act reforms the system of immigration and asylum appeals. Once again, no specific reference is made to children. Whilst the speeding up of the appeals process should be welcomed, we must be mindful that children need time to relate their experiences and may have emotional difficulties that impair their ability to give an accurate account of events. Time may also be needed to compile and present specialist reports and it is possible that children will be unable to present fully their case at a single hearing. The inevitable consequence of this is that, in some instances, the wrong decision will be made about the child's asylum application. Changes to the appeals process as outlined in the Act contravene Article 12 of the CRC, the child's right to freely express her/his views.

New support arrangements
Under clause 95 of the Act the provision of accommodation and essential living needs for asylum seekers will be transferred to the Secretary of State (ie, the Home Secretary). The Act, however, merely provides a safety net as, in order to trigger this support, the asylum seeker must be destitute or likely to become so. It is envisaged that many asylum seekers will make their own arrangements or will be supported by relatives or their own communities. The Act gives the Home Secretary a power rather than a duty to assist, but clause 122 is clear that where there is a dependant under 18 years old in a household deemed to be destitute the Home Secretary must provide accommodation and essential living needs. This clause, however, also expressly prohibits local authorities from using existing child welfare legislation to provide accommodation and subsistence to families where support is being received under clause 95 of the Act or where there are reasonable grounds for believing that support would be offered under this clause. In short, asylum-seeking families cannot choose between support from the Home Secretary or support from a local authority. Provision also exists within the Act for asylum seekers to receive a support-only package if they can make their own accommodation arrangements.

Following a number of amendments during the Act's passage through Parliament all asylum seekers and their dependants will receive a cash payment of £10 a week, with additional vouchers to make a package equal to 90 per cent of income support rates. Children in families will have a package that equates to 100 per cent of income support. The Government has agreed not to apply the voucher element of the support arrangements to families with dependent children until it is satisfied that initial decisions on asylum applications for families are being made within their two-month target. Additionally, a cash payment of £50 will be made to all asylum seekers after six months of receiving support if a final decision has not been made on their asylum application.

Asylum-seeking children have the same broad needs as any other children and many have specific unmet needs relating to their experience prior to exile and en route to the UK. They require a 'normal' childhood just like their non-asylum-seeking peers and it is difficult to see how this can be achieved via a support package of which a substantial component will be comprised of vouchers.

An already limited family budget will be further squeezed because retailers accepting vouchers will be unable to give change where purchases do not fully meet the value of the voucher tendered. Nor will families be able to make savings by varying the outlets from which they buy their goods, such as local markets. Many supermarkets are located out of town, adding the cost of travel to the family's weekly shopping bill. The likely impact of all this for children is the increased risk of poor or unbalanced diets and the associated health problems that can arise from nutritional shortfalls. This contravenes Article 22 of the CRC, which affirms refugee children's right to humanitarian assistance; Article 26, every child's right to benefit from social security; and Article 27, the right that every child has to a reasonable standard of living.

It is easy to foresee difficulties for asylum-seeking families to meet cultural needs if they are forced to use particular retailers. Examples could include access to halal meat, or products with particular ritualistic significance. Children need a strong sense of identity and should have the freedom to practise and celebrate their religion and culture. Indeed, many families highlight their children's drift from traditional values and their desire to embrace westernised culture as a major point of conflict. The voucher system is further likely to erode the asylum-seeking child's cultural base. This contravenes Article 30 of the CRC, the right for children of minorities to enjoy their own culture, practise their religion and use their own language.

Leisure and stimulation are essential components of a child's development and to this end some toys should be perceived as useful educational tools. Similarly, access to cultural events, freedom to take part in sport and access to heritage and historical sites all have their place in the lives and growth of children. All of this is threatened by the voucher system because the cash element of the package will not extend to these activities and vouchers are unlikely to be accepted as payment. This contravenes Article 30 of the CRC, as above; and Article 31, the child's right to rest and leisure, play and recreational activities and to participate fully in cultural and artistic life.

Examples exist of prejudice and discrimination by some supermarket staff when dealing with families tendering vouchers. Vouchers will add to the marginalisation and stigmatisation that many asylum-seeking children already feel and experience. This contravenes Article 2 of the CRC, the child's right to non- discrimination.

It is equally difficult to see how offers of accommodation on a no-choice basis and the subsequent dispersal of asylum seekers that will inevitably follow can be consistent with the best interests of children. Without planning there is a real chance that racism and prejudice will flourish in some communities and lead to victimisation and harassment. It is likely that, despite assurances to the contrary, the dispersal of asylum seekers will be accommodation led and it is thus probable that many asylum-seeking children will end up isolated on sink estates removed from cultural and community support. This contravenes Article 2 of the CRC, the child's right to non-discrimination; and Article 27 the right to a reasonable standard of living (see above).

If the options available to asylum-seeking families are either dispersal or makeshift accommodation with friends or relatives, many will choose the latter. This could lead to overcrowding in cramped conditions, exacerbated by the poor quality of the housing usually available to asylum seekers. Where families choose dispersal will accommodation be safe and appropriate for their children, located within reasonable distance of schools and health centres, and at a distance from busy roads? For those in multi-occupancy accommodation what steps will be taken to ensure children are not living under the same roof as those convicted or suspected of offences against children? This contravenes Article 19 of the CRC, the child's right to protection from abuse and neglect.

Although children will not be denied access to education there are issues here too for dispersed asylum-seeking children. Many education authorities will need time to develop new services in response to the needs of the asylum-seeking child and the different models of education that children may be used to. Consideration will also need to be given to issues relating to disrupted patterns of education, the variety of languages and need for appropriate support for children whose first language is not English. Schools will also need strategies to deal with the high incidence of bullying experienced by asylum-seeking children. If education authorities fail to get this right the academic achievements of many dispersed children will suffer and the risk of isolation will be greatly increased. The danger here is that Article 28 of the CRC, the child's right to education, will be contravened.

Similarly, health authorities will need to adapt their services to respond to the cultural and linguistic needs of asylum-seeking children, as well as ensuring they have knowledge of illnesses that are more prevalent in regions other than the UK. There is a real risk that the health needs of children dispersed under the Act will go unaddressed. This contravenes Article 24 of the CRC, the child's right to the highest attainable standard of health and the state's duty to provide health education.

Currently, most of the specialist services needed by asylum seekers tend to be under-represented outside London and the South East. In particular, quality legal representation and specialist, culturally appropriate therapeutic services are scarce regionally. The same is true of the availability of trained interpreters. In short, many asylum-seeking children will not receive the level of specialist support appropriate to their needs. This contravenes Article 39 of the CRC, the state's duty to promote rehabilitative care for children.

Notwithstanding the widespread dispersal of 16 and 17 year olds by local authorities, often to unsupervised placements, the Act makes no provision for the dispersal or support of unaccompanied children. The Act will prohibit 16 and 17 year old unaccompanied asylum applicants who made their claim at the port of entry from receiving welfare benefits. Given that the National Asylum Support Service will not have any responsibility for those under 18, it follows that the sole providers of support for this group will be local authorities. A significant area where the Act could impact upon this group is at the point where the child ceases to be looked after by a local authority. There remains a distinct lack of clarity surrounding ongoing local authority duties to this specific group. One scenario is that upon turning 18 a youngster would be expected to apply to the National Asylum Support Service for assistance at which point s/he would be dispersed under the provisions of the Act. The potential disruption and hardship this would cause in terms of continuity in education, accommodation and access to community and specialist support is hard to quantify. This contravenes Article 2 of the CRC, the child's right to non-discrimination; Article 3, the best interests of the child; Article 12, the child's right to express her/his opinion; Article 22, the duty to provide humanitarian assistance to refugee children; Article 24, the child's right to quality health care; Article 27, the child's right to a reasonable standard of living; Article 28, the child's right to education; Article 30, the rights of children to enjoy their own culture; Article 39, the child's right to rehabilitative care.

Conclusion
The historical response to the needs of refugee children has been invariably reactive, ad-hoc, fragmented and inconsistent. The 1999 Immigration and Asylum Act missed an opportunity to begin to plan strategicly ways of meeting the needs of this exceptionally vulnerable group. In particular, liaison between the Home Office, the Department of Health and other relevant government departments needs to be strengthened and the voluntary sector and refugee communities engaged in genuine partnership. Working together is, after all, a cornerstone of good childcare practice.

A number of areas remain unaddressed. There is no mention in the Act of the promotion of family reunion. Measures need to be put in place in line with Article 10 of the CRC, which outlines the state's duty to deal with family reunion in a positive, humane and expeditious manner. There is still a lack of clear guidelines on processes and procedures for dealing with children who claim asylum. These are necessary if applications from children are to be processed quickly and sensitively in a manner that recognises their needs as children. Although the Act makes changes to the appeals process the system still fails to reflect the safeguards that exist for children in other court settings, nor is there any consideration that presenting officers and adjudicators may benefit from specialising and training in working exclusively with children. Similarly, the Act will make changes to the regulation of legal advisers to asylum seekers but fails to take any steps to guarantee that those providing legal representation to children must receive accreditation regarding their competence, integrity and their skills and sensitivity towards children.

There is a very real danger that the Act will exacerbate the already dire situation that exists for many refugee children. Many will find themselves isolated from their communities, living on low incomes in poor quality accommodation, facing harassment and having difficulty in accessing basic services. Marginalisation, stigmatisation and social exclusion will rise and some children will drift into exploitative and harmful situations. Perhaps this is because the Act makes very few direct references to children and, once again, one can only conclude that refugee children have been perceived as refugees first and children second, rather than visa versa.

The very nature of its universality means that the CRC is applicable to refugee children in the same way as it is to any other child. The Act effectively sidesteps the UK's obligations to the CRC and is contrary to its spirit. Instead of embracing refugee children it sets a dangerous precedent by providing a framework to treat one particular group of children differently to their peers and allowing for different standards of service to be applied to refugee children. The best interest test of the CRC, Article 3, is meant to ensure that a child's rights are central to every decision affecting her or him. This Act has not done so.

Terry Smith
Poverty 105, Winter 2000