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Social Welfare Update: The High Court confirms the urgency - and mandatory obligations - for Local Authorities to progress EUSS applications on behalf of children and care leavers

Friday 30 April 2021

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Introduction

In a decision on 31 March 2021, Mr. Justice McDonald gave guidance as to how local authorities should approach applications to the EU Settlement Scheme (“EUSS”) for children in their care.

The case is of wider relevance as to the approach of local authorities to immigration applications more generally, including for children in need and care-leavers and contains a useful analysis of the impact of insecure immigration status on children generally.
 

Judgment

The cases concerned four children all of whom were Polish nationals, subject to care orders in favour of two local authorities.

The local authorities applied to the High Court for orders under the inherent jurisdiction to determine how applications should be made on behalf of the children in the face of parental objection/non-co-operation and whether or not local authorities could apply for Polish passports for the children.

The Court confirmed that local authorities can- and indeed must- progress EUSS applications on behalf of looked after children, and can apply for any identity documents necessary for such an application, even in the face of parental objection - under their powers in section 33 (3) of the Children Act 1989 and without recourse to the courts in all but exceptional cases.

MacDonald J in particular stressed that the duty on local authorities to progress an EUSS application on behalf of a child in care is a mandatory duty and that such applications should be made in a “timely manner” and before the deadline of 30 June 2021.

The judgment contains a helpful exposition of the impact of insecure immigration status on children and young people, including on their identity and well-being as well as on their future residence rights. MacDonald J. states:

“It is not acceptable to leave children in a position of 'limbo' with respect to their immigration position […] A late application will result in the child becoming undocumented for a period, with the concomitant impact on access to services and benefits and liability to immigration enforcement. Even a short period undocumented can have an adverse impact on a child or young person.” [79]


Comment

This case is a welcome clarification of the duties that local authorities have to EU children in their care.

It is also a timely decision- with less than ten weeks remaining for applications to the scheme to be made on behalf of children in care- it should serve as an urgent reminder to local authorities to identify relevant EU children and progress applications on their behalf.

The case also contains useful analysis as to the impact of insecure immigration status on children generally and as such is relevant to other children/care-leavers who may require support from local authorities to regularise their immigration status, outside the EUSS context.

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