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Falling through the cracks

Guest Author

The UK lifted its 'immigration reservation' to the UN Convention on the Rights of the Child (UNCRC) in 2009, putting an end to the time when children subject to immigration control could have their rights under the convention restricted. The move was celebrated by children’s charities, who felt that migrant children could finally be treated as ‘children first, migrants second’. A new report from the Migrant and Refugee Children’s Legal Unit (MiCLU) finds that the legacy of the reservation lives on in legislative and procedural failings, austerity-driven cuts and the government’s ‘hostile environment’ strategy.

The report presents the findings of over four years of specialist casework with 52 children and young people (CYP) who are separated - by force, loss or family breakdown - and ‘undocumented’: unable to provide evidence of British citizenship or lawful residence in the UK. While the vulnerability of unaccompanied asylum-seeking children is generally recognised, the research addresses a lack of understanding about the circumstances and needs of unaccompanied children whose right to remain is based on periods of long residence or close connections in the UK. MiCLU’s casework reveals that even those professionals with experience of working with young people with immigration problems were unsure how to support this group.

Providing further impetus to the research was the new challenge to the safeguarding needs of lone undocumented CYP arising from the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) in April 2013. The changes, which among other things placed non-asylum cases outside the scope of legal aid provision, severely curtailed access to justice for this group. The project team accessed the funding in place prior to April 2013, supplemented by additional charitable funding, to map the legal, social and welfare needs of the group. In this way they were able to indicate what would be lost under LASPO’s changes and model an approach that best met the needs of these CYP.

While this is a diverse group whose backgrounds and journeys into undocumented status vary widely, they share a set of interrelated vulnerabilities particular to being alone and unable to provide evidence of one’s right to remain in the country. The entire cohort supported by MiCLU’s project team required some form of advice relating to an immigration matter, but 37% had legal needs in four or more other areas. 40% had ‘emergency’ legal or advocacy needs that had to be addressed before the question of their immigration status, including 27% who were homeless and 10% who were living in exploitative or abusive environments on referral. Some 71% of the cohort had experienced some form of abuse, much of which was perpetrated with the knowledge that the CYP’s undocumented status would make them less likely to report crimes against them. 

A lack of documentation compounded pre-existing vulnerability factors and frequently gave rise to new ones. This created a situation in which CYP’s immediate support needs became an overwhelming obstacle to addressing the immigration-legal issue that lay at the root of their cases.

These issues are aggravated by the failure of many legal and social service providers to offer child-friendly, migrant-friendly support. Children and young people were denied support to which they were legally entitled on the basis of their uncertain immigration status. Local authorities appeared more concerned with ‘gatekeeping’ services than offering support, and treating a lack of documentation with suspicion. Many of the cohort were expected to self-diagnose their legal needs or make sense of hugely complex immigration-legal documentation without the help of an adult. Frequently they were given referrals to multiple agencies, which were experienced as bewildering and stressful and which often led to them giving up on the struggle to have their problems addressed. 

With the use of a holistic, child-focused approach, the project team were successful in bringing about positive outcomes for the cohort. At the time of publication 86% had moved on from undocumented status, and all had had their most immediate legal and social needs met, though many were still involved in protracted battles over welfare benefits, housing and long term leave to remain. As access to healthcare, welfare benefits, education and housing becomes ever-more tied to citizenship status, the report provides a stark warning about the human costs of tightening immigration control and a much-needed reminder of the UK’s commitments under the UNCRC.

You can read Precarious Citizenship: Unseen, Settled and Alone - The Legal and Protection Needs of ‘Undocumented’ Children and Young People in England and Wales here: