Human Rights Claims for Unaccompanied Children (UASC)

Who is an Unaccompanied Child Under Human Rights Law?

Article 2 of the European Convention on Human Rights defines unaccompanied migrant children as those who have arrived in a member state alone or with one of the following:

• An underage or adult sibling. For example, two underage siblings arriving together are considered two unaccompanied asylum-seeking children
• An adult who is not responsible for them
• An underage or adult partner or spouse

This means that a young person arriving without their parents or legal guardians will usually be considered unaccompanied. The unaccompanied status remains until a suitable and responsible adult begins to accompany them. They can also become unaccompanied if they arrive in an ECHR member state and are then left.

Someone also needs to be under the age of 18 to have unaccompanied child status. Like many seeking asylum, such individuals often lack documentary evidence. In this case, a judgement is made whether the individual appears to be under eighteen.

How Do Authorities Assess a Child’s Age

Authorities conduct age assessments if someone claims to be a child and there is insufficient documentary evidence to attest to this. The first assessment following age disputes is made by Home Office officials if they doubt that the young person is being honest about their age. During this cursory age assessment, they will make a judgement based solely on the appearance and demeanour of the young person.

Despite the Home Office’s assessment, local authorities will have to make their own age assessments once the child has been passed on to them. Local authorities dealing with children who have age disputes must be more comprehensive, fair, and transparent than the Home Office. They also need to follow the guidance for age assessments that has been shared across local authorities.

Local authorities’ age assessments have to be conducted by qualified social workers at suitable facilities, and the young person must understand the purpose of the interview. In some cases, the social workers may refuse to conduct age assessments if they believe there is no reason to doubt the child’s claimed age.

However, they will need to notify the Home Office and provide evidence. However, if age assessments are required, the social workers will test the child’s credibility and cover the following:

• Family members, circumstances, and history
• Educational background
• Activities over the past few years

Based on the answers, and taking into account the child’s cultural background and the fact that they may feel the need to lie even if their claimed age is correct, the social worker will make a judgement about the child’s age.

Immediate Protection Obligations Upon Identification

Unaccompanied migrant children are usually identified by immigration officials at a port of entry, during immigration enforcement operations, or at an asylum intake unit. Once they are discovered, Home Office officials must follow a number of procedures. This includes conducting a booking-in process, during which biometric information will be taken. Officials also need to ask questions needed to identify any welfare or human trafficking concerns.

The Children Act 1989 then makes local authorities and social services responsible for migrant children who arrive in the UK unaccompanied and do not have adult close family members they can join. The same applies if a Home Office age assessment indicates that an asylum seeker is an adult, but this is later overturned. As a result, the Home Office must notify local authorities as quickly as possible.

Once unaccompanied migrant children are identified, local authorities have immediate protection obligations. The responsible local authority is the one with jurisdiction over the area where the young person is present. It is possible for multiple local authorities to have obligations, such as if the child lives in one area and attends school in another.

Obligations for the UK Government and local authorities continue once the young person turns 18. They must be accommodated under the UK Visas and Immigration (UKVI) provisions for adult asylum seekers.

The Best Interests of the Child Principle in Practice

Article 3(1) of the United Nations Convention on the Rights of the Child 1989 insists that “the best interests of the child shall be the primary consideration” in all matters involving children. This includes a child’s asylum claim.

However, the best interests of a young person can be difficult to determine exactly. However, the landmark case ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 went some distance to defining them, the conclusions included that the best interests of a child:

• Are broadly connected to their wellbeing
• Can often be determined by discovering what the child wants and their views
• May be the same as their parents or guardians, but this should not be assumed

The ‘best interests’ principle guarantees that every stage of the asylum process keeps a child’s welfare and wellbeing at the centre. It applies to both the Home Office and any agencies or local authorities working with the young person. It also applies regardless of the child’s immigration status at any time.

Examples of instances where officials will need to have a child’s best interests in mind include the following:

• Conducting interviews
• Providing accommodation and any other living support
• Setting timescales
• Considering evidence

At these points of the asylum process, authorities must meet their best interests obligations by considering the following:

• The child’s feelings and wishes
• Their emotional, educational, and physical needs
• The positive and negative impact of any changes
• The child’s age and other characteristics, such as their sex and background
• The risk of harm and any connections to past abuse
• The standard of care they are receiving from any guardian or caregiver
• The types and impact of possible interventions

These obligations are legal, as set out in section 55 of the Borders, Citizenship and Immigration Act 2009. That means a refused asylum claim can be appealed at a tribunal on the basis that the Home Office hasn’t adequately protected the best interests of a young person.

Step-by-Step Guide to Making a Human Rights Claim

Unaccompanied asylum-seeking children may make a human rights claim if they have been refused asylum, alongside their asylum claim, or prior to their turning 18, usually if arrangements for their return are being assessed. Such claims are assertions that deportation to one’s country of origin would be unlawful.

The process begins by assessing what type of human rights would be breached. Examples in the European Convention on Human Rights include the right against inhuman or degrading treatment on return or the right to private life.

The claim is then made to the Home Office in writing, via an online application where relevant, or as a submission to a pre-existing immigration decision, such as the refusal of asylum or a visa application. Alongside the claim, strong documentary evidence, detailed further in the following section, is essential.

If refused, such human rights claims have an in-country right of appeal if refused. This means that young people seeking asylum will not be forced to return to their country of origin while they wait for their appeal rights to be exhausted.

Meanwhile, if the human rights assessment determines the young person cannot return to their country of origin without having their human rights violated, they will receive limited leave to remain on human rights grounds.

Special Protection Issues: The Human Rights Risks Children Face

Unaccompanied asylum-seeking children are at a greater risk of an array of human rights concerns. Vulnerability to these concerns could inform and strengthen human rights claims. These are detailed below:

Firstly, they are at a greater risk of trafficking and exploitation. This can include forced labour, modern slavery, criminal exploitation, and sexual exploitation.

Among migrant children, girls are particularly vulnerable, depending on the particular country of origin to which they might be returned. Examples include sexual violence, forced marriages, honour-based abuse, and more.

Migrant children with physical disabilities, learning difficulties, and mental health conditions also face a higher risk of their human rights being breached. Human rights concerns may rise if the disability could expose the young person to neglect and abuse, if removal would harm their dignity and functioning, or if adequate treatment is not available in their country of origin.

The digital age has also increased the vulnerability of unaccompanied asylum-seeking children. This is due to the dangers of online grooming and the use of social media for coercion.

Human rights risks do not disappear once a young person turns 18. In a human rights assessment, decision makers need to consider what vulnerabilities will continue into legal adulthood. Meanwhile, local authorities will need to deal with ongoing support needs.

Evidence and Documentation for Human Rights Claims

Even for unaccompanied asylum-seeking children, making a successful human rights claim requires extensive evidence and documentation to prove that your claim is legitimate. The exact documentation needed will vary greatly depending on the nature of the claim.

However, examples of common documentation required include the following:

• Evidence of past abuse
• Evidence of the psychological impact of any past abuse, such as medical reports and diagnoses of conditions like post-traumatic stress disorder (PTSD)
• Reports on violence or persecution in the child’s country of origin
• Evidence on conditions for returnees in the country of origin, particularly for those without family support
• Evidence of a lack of family support upon returning, such as reports on the feasibility of tracing the child’s family members
• Home Office documentation on previous legal procedures, such as asylum applications and refusal letters

Rejection of the Child’s Human Rights and Asylum Claim

If the Home Office decides an unaccompanied asylum-seeking child should not be granted refugee status, they have no valid human rights claim, and appeal rights are exhausted, the child may be returned to their country of origin.

The process begins with a return discussion between the young person, their duty social worker, and a Home Office official. An interpreter and the child’s legal representative can also be present. The aim of this discussion is to understand the options for them returning home and the implications of each, and to prepare for their departure.

There are two outcomes from the discussion:

• The child requests to return to their country of origin via the Home Office voluntary returns system
• The child declines voluntary return, and the enforced removal process will begin

Regardless of the child’s decision, their welfare and best interests should still be taken into account. The UK Government acknowledges that return procedures will be stressful for the young person and could result in them becoming depressed, acting erratically, or threatening to go missing.

Any behaviour that could become a child’s welfare or safeguarding concern must be referred to their duty social worker.

Applications for Further Leave

Refusal of human rights and asylum claims does not always mean unaccompanied asylum-seeking children have to immediately return to their country of origin.

They may be granted leave to remain in the UK while reception arrangements in their country of origin are made. This time in the UK can be extended through an application for further leave, which can be made from 28 days before the current leave’s expiry.

Additional time in the UK can allow the following to occur:

• A new tracing step for the child’s family members emerges
• The likelihood of success for a previously utilised family tracing step improves
• Adequate reception arrangements in the child’s country of origin become suitable

How Can IAS Help?

The number of unaccompanied asylum-seeking children has been rising over the last decade. From 2017 to 2021, they rose from 2,400 to 4,382. Such children are in desperate need of help making asylum claims or a human rights assessment.

Unaccompanied migrant children have the right to a legal representative through the legal aid system. Given the incredible complexity of many human rights assessment applications and asylum claims, it is highly advisable to get help from immigration solicitors such as Immigration Advice Service.

With 13 offices across the UK, including in Bristol, London, and Leeds, we can provide support in person. Our lawyers have helped many applicants to achieve asylum in the UK. Our team can also give emergency advice and support when claimants have been detained.

Unaccompanied asylum-seeking children can get support by calling +44 (0)333 414 9244. Our website also features detailed information on the range of other immigration services we offer in the UK.