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asylum in scotland

child's welfare paramount?

a guide for members from BASW and UNISON Scotland


Jointly published October 2006 by UNISON Scotland, 14 West Campbell Street, Glasgow G2 6RX and BASW Scotland,17 Waterloo Place, Edinburgh, EH1 3BG © 2006

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definitions

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Asylum or Refugee Status?

Asylum and immigration legislation (and associated orders) changes all the time. The 2006 legislation will be implemented in a period up to 2008. All of this legislation can affect the status of children coming to Scotland.

Therefore, the following is just a brief outline gathered from a range of advice sources at the time of writing and is not a definitive or current statement on the law. Click here for useful links and resources. It is important to check first and take advice on any child's status.

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Refugee status

The Home Office recognises refugee status and grants asylum when they consider that someone falls within the 1951 UN Convention definition of a refugee. People deemed to be refugees are automatically given Indefinite Leave to Remain (ILR). There is no limit on the time they may stay in the UK.

In most cases they may apply for British citizenship five years after their arrival in the UK, are entitled to a UN Convention Travel Document in the meantime and also to apply for family reunification. People with refugee status are entitled to the same social and economic rights as UK citizens.

That means they have -

  • Full rights to work under employment law
  • Full access to medical treatment, benefits, education and housing

The UK also awards Discretionary Leave (DL) and Humanitarian Protection (HP), which allow applicants to stay in the country for shorter periods of time, typically five years. These do not allow access to the same economic and social rights.

Nelson Mandela
The UN Convention on the Rights of the Child... "is that luminous living document that enshrines the rights of every child without exception to a life of dignity and self-fulfilment.” Nelson Mandela, 2000

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Asylum seekers

Asylum seeker means a person who has applied for asylum under the 1951 Refugee Convention on the Status of Refugees on the ground that if s/he is returned to his country of origin s/he has a well-founded fear of persecution on account of race, religion, nationality, political belief or membership of a particular social group.

S/he remains an asylum seeker for so long as her/his application or appeal is pending. Only after all appeal rights have ended unsuccessfully, may the person be considered a failed asylum seeker.

Asylum seekers cannot work and cannot claim welfare benefits. They can apply to the National Asylum Support Service (NASS), the government department responsible for destitute asylum applicants, for basic food and shelter. Section 122 of the IAA 1999 (as replaced by NIAA 2002 s 47) requires NASS (National Asylum Support Service) support to be made available to the households of destitute asylum seekers which include dependent children under 18, and prohibits local authorities from providing assistance under the Children (Scotland) Act 1995 s22 and other provisions where NASS is or could be providing it.

NASS support can be removed where the conditions of its grant are broken. This could be because of causing nuisance or breaching another condition of the support. Section 22 duties remain intact for children and families whose NASS support has been removed for this reason.

Their entitlement has not been affected by the IAA 1999 or the NIAA 2002 because the exclusions apply where NASS is or could be providing support.

Those who arrived before August 2000 and claimed asylum in the country rather than at the port of entry are still the responsibility of local authority social work services. It is intended that they will be absorbed into the NASS system.

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Unaccompanied asylum seeker children

The UN defines unaccompanied children as ‘those who are separated from both parents and are not being cared for by an adult who, by law or custom, has responsibility to do so'.

The Home Office uses the term to describe a child under 18 (or if there is no proof, appears to be under 18) outside their country of origin who is not accompanied by a close relative (regardless of whether or not that relative usually cares for the child).

This makes it a more narrowly defined term than ‘separated' children in the UN Convention.

The Immigration and Nationality Directorate (IND) does not consider a child to be unaccompanied if he or she is being cared for by an adult prepared to take responsibility for them.

The IND says it will involve social services in any case where there is concern about the child's relationship with the ‘responsible' adult.

They are not included in the definition of "asylum seeker” while they are under 18 so there is no limitation on their entitlement to Children (Scotland) Act support.

Local authorities have the same duties to young unaccompanied asylum seekers (or separated children) as they would have to any other children in their area who are unaccompanied and/or separated from their families. So they are eligible for the full range of support under the Children (Scotland) Act 1995 and other provisions (see legal resources on).

window

"Some of them who've been clearly persecuted, there are loads in the world, they've seen their family executed in front of them, they escape and get away here and we say to them you can't work, go and stay in the Red Road flats, and everyone's going ‘look at him, he's got a TV”.
Glasgow man quoted in ‘Warm Welcome: Understanding attitudes to asylum seekers in Scotland' by Miranda Lewis available from www.ippr.org

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Turning 18 and implications for support and status

Several issues face young people when they reach 18. Support systems change, they have to find their own accommodation, they may be dispersed and have their Leave to Remain reassessed. They may face return to their country of origin.

Case law has established (through the ‘Hillingdon case') the possibility of aftercare for asylum seeker children who were deemed ‘looked after' children in England.

The Children (Scotland) Act 1995 s29 and the Regulation of Care (Scotland) Act 2001 s73 may offer throughcare support but this will depend on a number of individual factors and practitioners should take advice.

S chool

"My message to the government is - take care of young people and help them and support them in their education; it's very difficult without your family.”
Bilal, age 16

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Failed asylum seekers

This term is used to describe people who have exhausted the asylum legal process and not been granted refugee status.

Families are still entitled to get NASS support after their asylum appeals have failed up until directions have been set for their removal from the UK (i.e. until a flight has been arranged for them to leave the UK but the family have not got on it).

After that, if NASS withdraws support, local authorities have to provide assistance to children and also to adults to whom assistance has to be provided in order to avoid a breach of a person's Convention Rights or their rights under European Community Law. This is covered in NIAA 2002 schedule 3.

New regulations mean accommodation can still be provided to failed asylum seekers by NASS on condition that they undertake community work.

However, this plan has faltered as the main charity involved has pulled out due to concerns about ‘slave labour'. It is argued that local authorities still have the power and duty to give social welfare services to families under the Children (Scotland) Act 1995 and other legislation.

Note: Section 9 of the 2004 Act allowed the Secretary of State to certify that a family has failed without reasonable excuse to take reasonable steps to leave the UK. In that case financial support could not be provided for the family by the local authority. A failed pilot and huge opposition from BASW, UNISON and many others led to a clause in the new Immigration Asylum and Nationality Act (2006) allowing the Secretary of State to repeal this.

Darfur
Refugees International

"Newspapers and politicians say we should go home. Do you think that if our home was safe we would want to come here? No. We would be in our home. One day I hope to go home and build a place where homeless people can go.”
Lindica, 14. Newham Children's Fund. (2002) Dreams, Struggles and Survivors: Messages from Young Refugees

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Migrant workers

Migrant workers include members of the EU, who are allowed to work and settle in the UK. For example, A8 citizens (from Latvia, Slovakia, Czech Republic, Lithuania, Slovenia, Estonia, Hungary and Poland) can work in the UK and have the same employment rights as UK citizens.

As long as they are registered with the Home Office and paying National Insurance, they are entitled to some basic benefits, such as housing benefit, council tax benefit and tax credits while they are working, although this is not always understood.

Only after they have worked continuously for 12 months can they access social, health and education services and claim jobseeker's allowance.

However, if they become unemployed within the 12 months, they lose access to all these benefits.

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