In a previous blog in this series, Maha Sardar from our Immigration Team explored the effective asylum ban imposed by the Illegal Migration Act 2023 (“IMA”). Prior to the passing of the IMA, there was at least some levels of protection for children under the Immigration Act 2014. Under the IMA, it is now more important than ever for migrants under the age of 18 to establish that they are children in law, as the new duty on the SSHD to make arrangements for the removal of a person from the UK does not apply to “unaccompanied children”.
Exclusion of some children from protection
In the immigration rules (352ZD) the definition of an Unaccompanied Asylum-Seeking Child (“UASC”) is broad and aimed at child protection. It expressly includes children who lodged their claim whilst they were under 18 (even if they have since turned 18); their age is set in time at point of entry. This is no longer the case under section 4 IMA. On 5 July 2023, the government published a children’s rights impact assessment of the IMA, finding that it would “protect children from the risk of death, trafficking.” The Children’s Commissioner responded: “I am far from convinced that is the case. Indeed, I am concerned that the threat to a child of deportation at 18 will be a gift to traffickers, as children will feel less able to seek help from professionals and instead go missing into the hands of exploiters.”
Further, the “unaccompanied” element under 352ZD simply means a child who is separated from both parents and is not being cared for by an adult who, in law or by custom, has responsibility to care for them. The new section 4 IMA definition of an unaccompanied child, in contrast, is aimed at exclusion. Only if no individual (whether or not a parent or someone responsible in law for the child) provides them with care, will they meet the definition: therefore, a child who is cared for by distant relatives or friends is excluded from protection.
Even prior to the passing of the IMA, establishing that you are a child, as a precedent fact, was vital to securing support under section 20 of the Children Act 1989, and the accommodation that follows. Once a child is in section 20 accommodation, they can become an eligible child and benefit from the support that ensues once they reach majority. The safeguards in the Children Act are invaluable, for instance, in insuring that children are only housed in a regulated children’s home.
The IMA reverses the 2010 commitment by the Conservative-led government, enacted into law under the Immigration Act 2014, to end child detention. Section 11 IMA amends Schedule 2 to the Immigration Act 1971 and effectively oust the jurisdiction of the courts in the first 28 days to grant bail. In essence, the SSHD has the power to detain migrants, even where there is no duty to remove. Section 13 IMA amends Schedule 10 to the Immigration Act 2016 and provides for unaccompanied children to be granted bail after 8 days in limited circumstances. The effect of sections 11 and 13 together is that, in some cases, children can be detained for up to 28 days without bail.
Prior to the passing of the Nationality and Borders Act 2022 (“NBA”), it was unlawful for a Local Authority to treat a claimed child as an adult, pending the determination of their age assessment. As made clear in R(S) v Croydon LBC  EWHC 265, reflecting the position in the Statutory Guidance and Association of Directors of Children’s Services Age Assessment Guidance, you are to be treated as a child until proven to be an adult by way of a “Merton Compliant” age assessment.
Section 49 NBA reverses this position and places the burden on the otherwise putative child to prove their minority by creating the concept of an age disputed person; any individual who requires leave to enter the UK in relation to whom a Local Authority, Public Authority or the Secretary of State has insufficient information to be sure of their age.
Sections 54-57 of the NBA are not yet in force but represent a move away from challenging local authority age assessments by way of Judicial review, by creating a direct right of appeal to the First Tier Tribunal (Immigration and Asylum Chamber). At first blush, this might seem positive, creating an automatic right to a substantive appeal. However, the permission threshold is already lower in age assessments than in traditional judicial reviews, as age is an issue of precedent fact to be decided by a court on the balance of probabilities. Why then move to a statutory appeal?
The answer lies in section 57 IMA which go on to remove the (newly created) statutory right to appeal an age assessment decision to the FTT and allows the removal of a person while any judicial review challenge is ongoing. The remaining judicial review right is limited to concluding that the decision was wrong in law and not that it was wrong as a matter of fact. The lower threshold for fact finding in judicial review of age assessments will now be limited to a Wednesbury review of reasonableness; a notoriously high threshold to meet. This ousts a putative child’s ability to establish their age as a precedent fact through the Courts. They will, in essence, be left to the mercy of the newly constituted National Age Assessment Board (“NAAB”), made up of Home Office employed social workers. The British Association of Social Workers have expressed grave concerns about institutional pressure on HO caseworkers to meet immigration related targets affecting their independence, reducing immigration being a political priority.
The final piece of the jigsaw lies in section 17 IMA, which gives the SSHD the power to demand the transfer of children from LA care to HO care. Accordingly, where a person’s age is in dispute, the Home Office will have easier access to them; once the NAAB has determined that the person is, in their view, over 18 (whether or not they were a child when they arrived) deprived of a statutory right of appeal, and judicial review no longer representing a barrier to removal, the migrant will no longer have the protection on section 4 IMA. Waiting in a Home Office ran children's-home-come-detention-centre, the individual will face imminent removal under section 2 IMA, and with no last line of defence against the SSHD.
Neither sections 54-57 of the NBA nor section 57 IMA are yet in force and their start dates are yet to be appointed. The Home Office has indicated that they will not bring certain provisions in until the conclusion of the Rwanda litigation, assuming they are successful in the Supreme Court. Members of our Immigration Team are fighting tirelessly to ensure the Rwanda plan cannot lawfully be effected, and we remain hopeful that, without a deportation strategy in place, these abhorrent measures, which represent an affront to the 1989 Convention on the Rights of the Child, will be abandoned by the current government.
Immigration Law, Civil Liberties and Human Rights | Friday 15 September 2023
Immigration Blog: Illegal Migration Act - An Asylum Apocalypse?
Blog post by Maha Sardar of the Garden Court Immigration Team.
Immigration Law, Immigration Detention, Asylum and Deportation, Administrative and Public Law | Monday 4 September 2023
Immigration Blog: Illegal Migration Act's implications for victims of trafficking and modern slavery
Blog post by Nadia O'Mara of the Garden Court Immigration and Public Law Teams.