In whose best interests? Exploring Unaccompanied Minors' Rights through the lens of Migration and Asylum Processes (MinAs)

"The current refugee crisis is the greatest humanitarian challenge to have
faced the European Union since its foundation." House of Lords report on Children in Crisis, July 2016.

Research was funded by PPUAM (Pilot Project – Analysis of reception, protection and integration for unaccompanied minors in the EU) of the European Union. The project involved collaboration between researchers from four European countries (Slovenia, Austria, France and United Kingdom).

The main project aim was to identify and recommend better procedures and protection measures for unaccompanied minors (UAM). The project examined reception, protection, asylum and return procedures and focused on:

• the concept of best interests of the child (BIC)
• the formal processes of best interests determination (BID).

The project looked at both concepts in the actual legal framework for UAM reception, protection, asylum and return procedures in the four EU countries. Many European countries have not yet introduced best interests determination procedures into their national legislation for UAM.

In these cases, a lack of appropriate safeguards for UAM is most likely to arise, leaving the possibility of potentially problematic flexible interpretation of the child’s best interests, which may lead to nationalist, xenophobic and discriminatory reasoning and practice.

In order to contribute to fulfilling the national obligations set out by international law, as well as following the aims of the European Commission, the project documented the gaps in the protection of the best interests of the child and offered recommendations.

Dissemination and impact

Jo Wilding published several articles in The Conversation:
◊ Young Eritreans are victims of poor decision making by British asylum officials.
◊ Immigrants told to leave UK face huge hike in fees to appeal decisions.
◊ Revealed: asylum seeker children face welfare lottery on arrival in Britain
◊ Explainer: how does the UK decide who gets asylum?
◊ The false economy of giving sloppy legal advice to asylum seekers

The university hosted the Home and Away: migrant and refugee resettlement in the UK event, as part of the ESRC Festival of Social Science on Friday 13 November 2015. Speakers included Dr Mike Collyer and Dr Linda Tip (University of Sussex), Jo Wilding and Professor Marie-Bénédicte Dembour (University of Brighton), consultants Nick Scott Flynn and Richard Williams, teacher of English as an Additional Language Irene Mezheritsky-Tsherit and Jackie Chase from Radio Free Brighton.

In March 2016, the MinAs team responded to a call for evidence from the House of Lords for an inquiry into the situation of unaccompanied children in the EU carried out by the EU Home Affairs Sub-Committee. Two responses were submitted:

◊ one response related to the situation in the UK
◊ the second response related to the situation in the four countries covered in the MinAs project - Austria, France, Slovenia and the United Kingdom.

In the report published by the House of Lords European Union Committee in July 2016, evidence submitted by our researchers was cited frequently throughout. Our firm hope is that our research will have a beneficial impact on the reception and treatment of unaccompanied minors.

Eleven unaccompanied children or former unaccompanied children and seventeen experts were interviewed in the context of this research.

Asylum process

• Both sets of interviewees regard the asylum process as hostile, interrogatory and lacking in adequate procedural safeguards for the child. The asylum process is contrary to the children's best interests.
• In contrast to the provisions for children in criminal justice processes, the appropriate adult safeguard is ineffective in the asylum process and does not prevent oppressive, confusing or repetitive questioning by interviewers.
• The asylum process fails to gather information relevant to determining children’s best interests.
• Despite it being the mechanism best suited to safeguarding many children's best interests, the category of humanitarian protection is virtually never considered for unaccompanied children, let alone granted. This is to the detriment of children, especially those aged or nearing 17 and a half years old.
• Where judges complied with guidance for children’s cases, appeal hearings were a benign or positive experience for young people, but where judges failed to implement guidance, children were denied the right to effective participation in the proceedings.
• There is no alternative to the asylum process for unaccompanied children seeking some form of protection in the UK.
• Significant problems remain with age assessment, including assessments which do not appear to comply with the legal requirements and a lack of clarity about the number of assessments and disputes arising.

Care system

• Freedom of information requests showed that seven out of 150 local authorities in England look after 43 per cent of all unaccompanied asylum seeking children in the country.
• The high concentration of unaccompanied children appears detrimental when it leads to children:
   ◊ being allocated to social workers with higher caseloads and thus less time for any one child in their charge
   ◊ having limited access to good quality legal representation
   ◊ having lower chances of entering foster care
   ◊ having delayed access to or long journeys for receiving education
   ◊ being less likely to receive money to access places of worship and leisure activities vital for their physical and mental wellbeing.
• With no system of guardianship in England for unaccompanied children seeking asylum, the formal support system existing for these children is fragmented and certain roles remain unfulfilled in practice.
• None of the young people interviewed had been allocated an Independent Visitor, despite this being a statutory entitlement.

Whose best interest?

• In some cases, children develop a relationship with an adult who takes a significant role in their life, with tremendously positive impact. This happens on an ad hoc rather than a systematic basis, highlighting the need for a guardianship system.

• Legal aid cuts and the Legal Aid Agency’s contracting practices have created some serious obstacles to accessing good quality legal representation.

Recommendations

• The outcomes of this research suggest a need for the UK government to:
   ◊ develop a child-friendly method of sharing responsibility for unaccompanied children around the UK so that children are not disadvantaged by being concentrated in a few areas (subject to the caveat that this process must respect the children’s opinions and best interests and must not resemble the adult dispersal system);
   ◊ apply the guidance from the Police and Evidence Act for appropriate adults in criminal justice cases to those in asylum cases;
   ◊ amend the asylum process to respect the best interests of children throughout, including the method of information gathering and the type of information gathered;
   ◊ make better and wider use of humanitarian protection in children’s cases as a means of implementing durable solutions which are genuinely in the individual child’s best interests;
   ◊ reinstate legal aid for all children’s cases, whether asylum or not, and amend the legal aid contract to permit/better incentivise good quality representation;
amend the immigration rules to allow for family reunion for children recognised as refugees;
pilot a system of guardianship for all unaccompanied children.

It is envisaged that these research findings will improve understanding about the best interests of children and provide a solid basis for proper implementation of the principle in practice.