Children from Abroad

Evidence shows that unaccompanied migrant children or those accompanied by someone who is not their parent are particularly vulnerable. Immigration legislation impacts significantly on work to safeguard and promote the welfare of children and young people from abroad.

It is important to note that regulations and legislation in this area of work are complex and subject to constant change through legal challenge. This guidance, therefore, intends to provide an overview of the additional issues faced by families and/or children set within the framework of immigration law. All practitioners need to be aware of this context in their contact with such families and/or children. Legal advice about individual cases may be required.

Additional issues are likely to arise in relation to this cohort of children, whether or not they are found to be, or suspected of being, victims of trafficking or modern slavery. Additional considerations in all cases are likely to include issues such as immigration status, the need for interpreters and specialist legal advice. Some of these children may have been persecuted and have witnessed or been subject to horrific acts of violence. Assessing the needs of these children is only possible if their legal status, background experiences and culture are understood, including the culture shock of arrival in this country.

Unaccompanied, internally displaced children may have come to the UK seeking asylum or may be here to attend school or join their family.  An unaccompanied child may be the subject of a Private Fostering arrangement, and subsequently exploited or abandoned when the arrangement fails (see Children Living Away from Home Procedure).    

Some children may say they are unaccompanied when claiming asylum - a trafficker may have told the child that in doing so they will be granted permission to stay in the UK and be entitled to claim welfare benefits.

A significant number of children who are referred to local authority care as trafficked children or unaccompanied asylum seeking children (UASC), often then go missing and many go missing within one week. It is thought that they are then trafficked internally, within the UK, or out of the UK.

Whenever an unaccompanied child presents in a local authority area, all agencies dealing with the child should be alert to the possibility that the child may have been a victim of modern slavery, including the possibility that the child has been trafficked, and ensure that all relevant information about the child's circumstances is communicated to Children's Social Care. Information should be shared with consent where appropriate and where possible, but information can be shared without consent if the professional judgement is that there is good reason to do so, such as where their safety may be at risk.

If there are concerns that a child is a victim of trafficking, the practitioners will need to inform the National Referral Mechanism, which is a framework for identifying victims of human trafficking or modern slavery and ensuring that they receive the appropriate support. The child's details should be provided using the forms available on the National Referral Mechanism Digital Referral System: Report Modern Slavery.

In England and Wales, if someone is found not to be a victim of trafficking, the Competent Authority must go on to consider whether they are the victim of another form of modern slavery, which includes slavery, servitude and forced or compulsory labour.

This chapter should be read in conjunction with the following government guidance:

Care of Unaccompanied Migrant Children and Child Victims of Modern Slavery: Statutory Guidance for Local Authorities, November 2017 - This guidance sets out the steps local authorities should take to plan for the provision of support for looked after children who are unaccompanied asylum seeking children, unaccompanied migrant children or child victims of modern slavery including trafficking. Elements of this guidance will also be relevant for the care of looked after UK nationals who may also be child victims of modern slavery.

Safeguarding Children who May Have Been Trafficked (Home Office, 2011) - non-statutory government good practice guidance provides the detailed guidance on steps that local authorities should take, in partnership with other agencies, to identify and protect child victims of modern slavery, including trafficking, before they become looked after.

The first contact with the child and carers is crucial to the engagement with the family and the promotion of trust which underpins the future support, advice and services.

Such children should be assessed as a matter of urgency as they may be very geographically mobile and their vulnerabilities may be greater. All agencies should enable the child to be quickly linked into universal services, which can begin to address educational and health needs.

The assessment has to address not only the barriers which arise from cultural, linguistic and religious differences, but also the particular sensitivities which come from the experiences of many such children and families.

Particular sensitivities which may be present include:

• Concerns around immigration status;
• Fear of repatriation;
• Anxiety raised by yet another professional asking similar question to ones previously asked;
• Lack of understanding of the separate role of Children's Social Care, and that it is not an extension of the police;
• Lack of understanding of why an assessment needs to be carried out;
• Previous experience of being asked questions under threat or torture, or seeing that happen to someone else;
• Past trauma - past regime/experiences can impact upon the child's mental and physical health. This experience can make concerns from the Authorities about minor injury or poor living conditions seem trivial and this mismatch may add to the fear and uncertainty;
• The journey itself as well as the previous living situation may have been the source of trauma;
• The shock of arrival - the alien culture, system and language can cause shock and uncertainty, and can affect mood, behaviour and presentation;
• The child may have also been subject to frequent changes of address or location within the UK and may be living with the fear of sudden further unexplained moves.

Agencies should ensure that the interpreter shares a common language with the child, is professionally trained and has been screened through a DBS check. It is vital that the services of an interpreter are employed in the child's first language and that care is taken to ensure that the interpreter knows the correct dialect.

In cases where a new referral is received concerning an UASC presenting, then Social Care in partnership with Police should follow the ethos of Operation Innerste as a response. Operation Innerste identifies that if the presenting asylum seeker is claiming to be a child (aged under 18 years), then the response to the UASC by Police and Social Care will be that of them being a potential victim of trafficking in the first instance. Therefore, all appropriate attempts to prevent the presenting UASC from being arrested and taken to a Police Station will be made (unless there are concerns or necessity to best protect and support the presenting asylum seeker). Police and Social Care will work together to best respond to the presenting UASC’s needs both at the time of presentation, and to ensure safeguarding action can be taken if future concerns of trafficking or missing from care.

1.2.1 Age Assessments

The assessment of age is a complex task, which often relies on professional judgement and discretion. Many societies do not place a high level of importance upon age and it may also be calculated in different ways. Some young people may genuinely not know their age and this can be misread as lack of co-operation. Levels of competence in some areas or tasks may exceed or fall short of our expectations of a child of the same age in this country.

Age assessments should only be carried out where there is significant reason to doubt that the claimant is a child. Age assessments should not be a routine part of a local authority's assessment of unaccompanied or trafficked children. Care of Unaccompanied Migrant Children and Child Victims of Modern Slavery - Statutory Guidance for Local Authorities (November 2017) provides that where the age of a person is uncertain and there are reasonable grounds to believe that they are under 18, they will be treated as a child in order to receive immediate access to assistance, support and protection in accordance with section 51 of the Modern Slavery Act 2015. An age assessment should only be carried out if it is appropriate to do so, and should not cause a delay in referring into the NRM. Where age assessments are conducted, they must be compliant with case law of Merton and subsequent judgments.

ADCS Age Assessment Guidance provides good practice guidance to help frontline social workers conduct age assessments of unaccompanied children seeking asylum in the UK. It contains practical advice on preparing for, and conducting, age assessments, as well as addressing related issues such as trafficking, trauma and memory, and legislation and case law.

BASW Age Assessment Practice Guidance brings together best practice on age assessment, useful techniques and information as well as exploring the relationship between existing and new legislation on age assessment and the implications. 

The ADCS and Home Office Age Assessment Joint Working Guidance was updated in March 2023 to reflect the launch of the National Age Assessment Board, which began a phased rollout on 31 March 2023. The Board brings together a hub of specialist social workers, who will support local authorities and the Home Office to resolve age disputes by conducting age assessments. The Board will carry out full Merton-compliant age assessments upon referral from local authorities or on behalf of the Home Office, and will also use scientific methods to assess age once these are brought in.

The Board will set the national standard for age assessments, acting as a centralised team for local authorities and providing expert advice and training to improve the consistency and quality of how age assessments are carried out.

See also Age Assessment Process and Joint Working: Caseworker Guidance - immigration staff guidance on how the Home Office and local authorities in England assess age disputes from applicants claiming to be a child.

1.2.2 Immigration Issues

The immigration status of a child and their family has implications for the statutory responsibilities towards the family. It governs what help, if any, can be provided to the family and how help can be offered to the child.

All children, irrespective of their immigration status, are entitled to protection under the law. Local authorities need to ensure that child victims receive legal advice and support.

Where families are subject to immigration legislation which precludes support to the family, many will disappear into the community and wait until benefits can be awarded to them. During this interim period the children may suffer particular hardship - e.g. live in overcrowded and unsuitable conditions with no access to health or educational services. They are particularly vulnerable to exploitation because of their circumstances.

Children who disappear, where there are concerns about the child's welfare, should be considered to be missing and Children and Families that go Missing (Including Unborn Children) Procedure should be followed.

It may be appropriate for unaccompanied children to be informed of the availability of the Assisted Voluntary Return Scheme.

Asylum Process – Possible Outcomes

There are four main possible outcomes of the asylum process for an unaccompanied child, which will determine what the long term solution might be. These are outlined below including the impact they may have on care and pathway planning:

• Granted refugee status (i.e. granted asylum), with limited leave to remain for five years, after which time they can normally apply for settlement (i.e. indefinite leave to remain).
• Refused asylum but granted humanitarian protection, with limited leave to remain for five years, after which time they can normally apply for settlement (i.e. indefinite leave to remain). This is most commonly granted where the person is at risk of a form of 'ill treatment' in their country of origin but which does not meet the criteria of the Refugee Convention.
  As it is very likely that those granted refugee status or humanitarian protection will qualify for indefinite leave to remain, their care and pathway planning should primarily focus on their long-term future in the UK, in the same way as for any other care leaver.
• Refused asylum but granted Unaccompanied Asylum Seeking Child (UASC) Leave. This is normally for 30 months or until the age of 17½, whichever is the shorter period. This form of leave is granted to unaccompanied children where they do not qualify for refugee status or humanitarian protection, but where the Home Office cannot return them to their home country because it is not satisfied that safe and adequate reception arrangements are in place in that country. There must be no reasonable grounds for regarding the applicant as a danger to the community or security of the United Kingdom; they must not have been convicted by a final judgment of a particularly serious crime; and they must not, at the date of their application, be the subject of a deportation order or a decision to make a deportation order.
  It is a form of temporary leave to remain and is not a route to settlement. This decision is a refusal of the child's asylum claim and will attract a right of appeal. The child should be assisted to obtain legal advice on appealing against such a refusal. Before the child's UASC Leave expires, they can submit an application for further leave to remain and/or a fresh claim for asylum, which will be considered. It is essential that they are assisted to access legal advice and make any such further application or claim before their UASC Leave expires.
  In such cases, care and pathway planning should therefore consider the possibility that the child may have to return to their home country once their UASC Leave expires or that they may become legally resident in the UK long-term (if a subsequent application or appeal is successful). Planning should also cover the possibility that they reach the age of 18 with an outstanding application or appeal and are entitled to remain in the UK until its outcome is known.
• Refused asylum and granted no leave to remain. In this case the unaccompanied child is expected to return to their home country and their care plan should address the relevant actions and the support required. The Home Office will not return an unaccompanied child to their home country unless it is satisfied that safe and adequate reception arrangements are in place in that country. Any appeal or further application should be submitted where appropriate by the child's legal adviser.
  Although these are the four main types of outcomes for an unaccompanied child, there may be others. For example, a child may be granted discretionary leave depending on whether they meet other criteria such as needing to stay in the UK to help police with their enquires after being conclusively identified as a victim of trafficking. Other examples include: leave as a stateless person; limited or discretionary leave for compassionate reasons; and limited leave on the basis of family or private life.

Independent Family Returns Panel

The Secretary of State must consult the Independent Family Returns Panel in each family returns case, on how best to safeguard and promote the welfare of the children of the family, and in each case where the Secretary of State proposes to detain a family in pre-departure accommodation, on the suitability of so doing, having particular regard to the need to safeguard and promote the welfare of the children of the family.

A family returns case is a case where a child who is living in the United Kingdom is to be removed from or required to leave the United Kingdom, together with their parent/carer. 

Pre-departure accommodation is a secure facility designed to be used as a last resort where families fail to co-operate with other options to leave the UK, such as the offer of assisted voluntary return.

The Panel may request information in order that any return plan for a particular family has taken into account any information held by other agencies that relates to safeguarding, welfare or child protection. In particular a social worker or manager from Children's Social Care may be invited to contribute to the Panel.

Whenever any professional comes across a child who they believe has recently moved into this country the following basic information should be sought:

• Confirmation of the child's identity and immigration status;
• Confirmation of the carer's relationship with the child and immigration status;
• Confirmation of the child's health and education arrangements in this country;
• Confirmation of the child's health and education arrangements in the country of origin and any other country that the child has travelled through.

This should be done in a way which is as unthreatening to the child and carer as possible.

When an unaccompanied child or child accompanied by someone who does not have Parental Responsibility comes to the attention of any practitioner, a referral should be made to Children's Social Care in accordance with the Referrals Procedure. An Assessment will be undertaken in order to determine whether they are a Child in Need of services, including the need for protection.

Whether they are unaccompanied or accompanied by someone who is not their parent they should be assumed to be a Child in Need unless assessment indicates that this is not the case. The assessment of need should include a separate discussion with the child in a setting where, as far as possible, they feel able to talk freely. This, in itself, may be a complex process where the assessor may not be able to speak the same language as the child.

Many unaccompanied and/or trafficked children are at risk of going missing from care, often within the first 72 hours, whilst others may be at risk of repeated missing episodes due to ongoing exploitation.

Assessment

The Assessment will be conducted in accordance with the Assessment Procedure. The following additional issues will also need to be taken into consideration.

Assessing the needs of these children is only possible if their legal status, background experiences and culture are understood, including the culture shock of arrival in this country.

This is a highly complex area of work and professionals will need to have available to them a solid understanding of the asylum process or colleagues or other professionals with such expertise.

Seeking information from abroad should be a routine part of assessing the situation of an unaccompanied child. Practitioners from all key agencies - Health, Education, Children's Social Care and the Police - should all be prepared to request information from their equivalent agencies in the country or countries in which a child has lived, in order to gain as full as possible a picture of the child's preceding circumstances.

The child should be offered an Independent Visitor and, if they decline, their reasons should be recorded. Any Independent Visitor appointed should have appropriate training and demonstrate an understanding of the needs faced by unaccompanied or trafficked children.

The Assessment should take account of any particular psychological or emotional impact of experiences as an unaccompanied or trafficked child, and any consequent need for psychological or mental health support to help the child deal with them.

Unaccompanied migrant children and child victims of modern slavery will need access to specialist legal advice and support. This will be in relation to immigration and asylum applications and decisions and any associated legal proceedings. If they have been a victim of modern slavery, it may also be in relation to criminal proceedings or compensation claims. The assessment should note that specialist legal support is required and how it will be provided.

Planning for the child should include planning for a variety of possible outcomes regarding the child's immigration status - see Asylum Process – Possible Outcomes.