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Claiming asylum (for lawyers)

Children entering the asylum system can be either accompanied or unaccompanied. An unaccompanied asylum seeking child is defined by paragraph 352ZD of the Immigration Rules as one who is:

  • Under 18 years of age when the claim is submitted and
  • Claiming in their own right and
  • Separated from both parents and is not being cared for by an adult who in law or by custom has responsibility to do so.

An accompanied asylum seeking child is one who is being cared for either by parents or by someone who in law or custom has responsibility to do so.

A child can move from one category to the other during the course of the claim.

Part 11 of the Immigration Rules are particularly relevant to asylum seeking children and include the following:

  • Paragraph 349, which allows for a child (defined as a person who is under the age of 18 or, in the absence of any documentary evidence, appears to be under that age) to be included as the dependant of an asylum claimant or for a child to make an asylum claim in their own right and for that claim to be considered separately
  • Paragraph 350, which requires that in the case of unaccompanied children, particular priority and care be given to the handling of their cases
  • Paragraph 351, which sets out what is required from decision makers when considering whether a child qualifies for asylum
  • Paragraph 352, which sets out the requirements for undertaking asylum interviews with children
  • Paragraph 352ZA, which sets out the requirements for the provision of assistance to a child during the interview process
  • Paragraph 352ZB, which requires that the decision on the asylum claim is taken by a person trained to deal with asylum claims from children
  • Paragraphs 352ZC-ZF, which cover the leave to be granted to an unaccompanied child following the refusal of asylum and humanitarian protection in cases when return to the country of origin is not possible.

For general information on making an asylum claim see our immigration section.

The following are the key differences in the process for a child’s claim as opposed to an adult’s claim:

A responsible adult must be present when fingerprints are taken from a child under 16 years of age. Suitable people to perform this role include (but are not limited to):

  • Social workers
  • Local authority key workers
  • Relatives
  • Foster carers
  • Refugee Council representatives or charity workers.

In some cases, and only with the consent of the child, the child’s legal representative may also act as the responsible adult for fingerprinting purposes. This is not a practice we encourage as the provision for a separate responsible adult is for the benefit of the child, however we also recognise that there may be a small number of situations where the inevitable delay may not be in the interest of the child.

All unaccompanied children must be referred to the Refugee Council panel of advisers within 24 hours of the first encounter. This should be done by the officer dealing with the child on first encounter.

Children making an asylum claim in their own right are eligible for legal aid which will fund a legal representative and an interpreter to attend the substantive interview.

If at any stage a child goes missing, Home Office staff dealing with the asylum claim must contact their safeguarding officer, make enquiries with the local authority and report the child as missing to the National Crime Agency. A missing person marker must be placed on electronic records such as the police national computer. An NRM application must be suspended and an asylum claim is considered withdrawn.

For more information see:
gov.uk/government/publications/children-who-run-away-or-go-missing-from-home-or-care

Children’s asylum policy guidance can be found here:
gov.uk/government/collections/children-asylum-instructions

It includes guidance on processing children’s asylum claims:
gov.uk/government/publications/processing-an-asylum-application-from-a-child-instruction

Trafficking and claiming asylum

If there is reason to suspect that a child seeking asylum may be a potential victim of modern slavery, Home Office staff must refer the child victim to the NRM.

One of the factors to consider in the asylum claim is the risk of the child being re-trafficked and therefore the risk of future harm through exploitation and abuse. Once a case has been referred to the NRM, the competent authority guidance provides details on when the asylum decision can be taken. In some cases caseworkers may need to wait until the modern slavery decision has been taken under the national referral mechanism before taking the asylum decision.

If a person seeks to rely on being a victim of human trafficking or modern slavery as part of their asylum claim, the information and evidence gathered during the NRM process and the findings in respect of whether a person is a victim of human trafficking or modern slavery will inform the asylum process.

The conclusive grounds decision will be included in any outstanding asylum decision made after that decision as a finding of fact on whether the person was a victim of human trafficking or modern slavery or not; unless information comes to light at a later date that would alter the finding on human trafficking or modern slavery

The Home Office should not take an asylum decision unless the potential victim has had a negative reasonable grounds decision and should not take a negative asylum decision until the potential victim has had a conclusive grounds decision from the NRM.

Making a claim

A child upon claiming asylum should be issued with:

  • An asylum registration card (as evidence of their claim)
  • A standard evidence form (SEF) to be completed and returned to the Home Office within 28 days from issue

The form is divided into two main parts: a personal details and basis of claim.

For child victims, common to many victims of torture, it is not easy to disclose a history of exploitation, abuse and trauma. It is thus likely the statement in support of the basis of claim may not be completed by or before the deadline. It these cases you may complete and submit Part A with a request to extend time for the receipt of the statement.

The NRM referral form should be sought to check accuracy and consistency with instructions for asylum claim. The Home Office will rely upon these documents, inter alia, to establish credibility.

The purpose of the statement of support is to provide the child with an opportunity to gather his or her thoughts, to consider the type of questions which may be asked of them in the substantive interview, and also to fundamentally stand as the child’s evidence.

Interviews

When a child’s interview is scheduled the interviewing officer must have received the requisite training on how to conduct interviews with children.

The purpose of the interview is to explore the asylum claim, it is not for simple re-iteration of the statement in support.

The Home Office continue to automatically allow five working days for receipt of post-interview representations following a child’s asylum interview.

Post interview representations

Home Office request for no trafficking questions

Although the general policy is not to interview a child under 12, this is not a hard and fast rule. Any Home Office seeking to interview a child under 12 must be authorised by a senior manager.

There is provision in the guidance for child interviews to be conducted at a location which is suitable for the child. It is important to consider where the child’s trafficking occurred. For example, if the interview is in or near the child’s danger area or past place of trafficking or is an area which must be passed through. It is also relevant for when a child may have acute difficulties in responding to questions in an unfamiliar environment.

If the child turns 18 before the substantive interview is conducted, Home Office policy states that the case must wherever possible follow best practice for children’s cases and the decision maker should also be trained in handling children’s cases.

While NRM and asylum decisions are two distinct and separate decisions, an asylum interview may provide information that is also relevant to the NRM decision and issues are clarified and investigated as part of the asylum process.

Where possible, a single interview should be conducted in asylum claims relating to persons within the NRM process. If the Home Office is the competent authority, the asylum interviewing officer will have been provided issues to explore and questions to ask from the NRM.

Multiple interviews are not in the best interest of a child and have the potential to cause more trauma.

An asylum interview for a person within the NRM process may be conducted before a conclusive grounds decision is taken unless there is a good reason not to do conduct an interview at that time. This might for example be due to trauma or a medical condition. The Competent Authority will consider any request to delay an interview.

Family tracing

If the child is not in contact with their family and as long as it would not be contrary to the safety of the child, the safety of the child’s family or the well-being of the child in some way, the Home Office may take appropriate steps to endeavour to trace the child’s family members.

In case of child trafficking, it must be assessed very carefully whether it is in the child’s best interest. It may be that a parent or primary caregiver has sold the child to the traffickers or it may be that the child’s family is being threatened for reason, for example, of debt bondage. In such circumstances a strong objection must be raised to the Home Office’s intention to trace.

Basis of claim

Case law has shown that former victims of human trafficking can in some countries consist of a social group that may be further at risk in their country of origin. Equally as important for children, is they may also belong to a social group of children as age can be considered to be an immutable characteristic. The group should not be limited and should be framed in as many alternatives as possible as relevant: for example, street children, orphans, transgendered children.

Expert evidence

More detailed information on government policy on expert evidence and how to instruct experts is in our immigration section.

Expert evidence can be critical in establishing key aspects of a claim and can be divided roughly into the following headings:

Country experts
Prof John Sidel – Indonesia
Prof Holden – Pakistan

Medical experts
Dr Eileen Walsh
Dr Jacqui Gratton – experienced to assess children
Dr Sean Perrin – child psychologist
The Baobab Centre

Trafficking experts
The following are able to assess whether the child has been a victim of trafficking and provide an expert opinion:

ECPATUK
Anti-Slavery UK

Appeals

General information on appeals

An appeal may arise following refusal of an application for international protection. It may be that credibility is accepted but other parts of the Refugee Convention are not satisfied or alternatively the child is not believed and so an adverse credibility finding is made.

There may also be a negative reasonable grounds decision or negative conclusive grounds decision which may be under challenge under judicial review at the time of the First-tier Tribunal hearing. Alternatively there may be a positive conclusive grounds decision.

If there is a positive conclusive grounds decision it is important to request the minute consideration from the competent authority since they may include comment on such matters which can assist in the appeal. If there is resistance in disclosure, an application for specific directions can be made to the First-tier Tribunal All children’s cases are to be listed first.

Should the child instruct, an application for a gender court may be made with an explanation as to why it is required. A gender court is one where all parties, but not necessarily the child, are either male or female.

Unique to asylum claims arising out of human trafficking situations is that the persecutor (trafficker), or his or her associates, is usually still in the country. The child may be in fear of being identified. To minimise the risk of recognition an application for anonymity can be made using:
hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=2877

Further to Rule 27 of the Practice Direction an application can also be made for the hearing to be heard in camera thus allowing only parties connected to the hearing entry into the Tribunal hearing room.

For all children and vulnerable witnesses, the tribunal must comply with:
judiciary.gov.uk/wp-content/uploads/2014/08/ChildWitnessGuidance.pdf

Depending on the vulnerability of the child, a child-friendly tribunal may be requested; this should include, for example, all parties on one level, rather than the immigration judge on a raised level, and other measures made to make the child feel more at ease. In theory, an application can also be made for the hearing to take place in the judge’s chamber.

The child must be accompanied by a responsible adult; this could be the foster parent, social worker or support worker (for example from the Refugee Council). A legal representative cannot be a responsible adult for the tribunal.

Choice of counsel is an important decision; counsel who is not simply experienced in human trafficking but also one who is a child rights barrister is a must. Equally important is for counsel to be able to communicate with children.

It is good practice for a conference to be arranged with counsel to meet with the child and his or her responsible adult in advance of the hearing. Legal aid will fund the conference.

Counsel is also to be specifically briefed should the child be called for evidence, all questions are put to the child in language the child will understand and at a pace corresponding to the child’s capacity. Breaks must be routinely enforced if the child is giving evidence. This is to ensure the child is not exhausted by lengthy questioning, is refreshed and remains focussed.

In addition to objective, subjective evidence and expert opinions, it should also be explored whether foster parents and support workers should and are able to give evidence; for example, a foster parent may be able to give evidence of how the day to day fear of the child is revealed. The support worker may be able to give evidence of whether the child is part of any project and the type of support the child accesses and continues to require.

It may also be possible to obtain a written opinion from Amnesty International, Human Rights Watch or UNHCR to further substantiate the child’s claims in regard to the situation in a particular country or for a specific group of people.

The following grounds may be raised:

  • Particular social group (PSG) for asylum: it is however good practice not to limit to one PSG and to keep this ground quite fluid
  • Breach of Article 3 and 4 ECHR
  • Breach of Article 8 ECHR
  • Internal flight alternative unduly harsh (as child).

And reliance upon:

  • Council of Europe Convention on Action against Trafficking in Human Beings
  • Directive 2011/36/EU – which gives particular emphasis to the protection of child trafficking victims
  • UN Convention on the Rights of the Child 1989 (to provide a child-rights lens to interpretation)
  • Charter of Fundamental Rights of the European Union.

The following guidance is also relevant:

  • UNHCR Guidelines on International Protection: ‘Membership of a particular social group’
  • UNHCR Guidelines on International Protection: ‘The application of Article 1A(2) of the 1951 Convention and/or 1967 relating to the Status of Refugees to victims of trafficking and persons at risk of being trafficked’
  • UNHCR Guidelines on International Protection: ‘Internal Flight or Relocation Alternative’.

At the conclusion of the hearing an indication should be sought from the judge of the period of time before the determination is received.

Residence permits and challenge to lack of issue

A residence permit should be issued if the child is found conclusively to be a victim of human trafficking and one or more of the following applies:

  • The child is assisting the police
  • There are personal circumstances that require one such child protection concerns or fear of reprisals if they cooperate with the police
  • The child is pursuing a compensation claim.

The residence permit can be from any period up to 30 months. There have been a small number of challenges which have relied upon Article 14 EU/2011/36 to secure indefinite leave to remain for children. These have been fact-specific with reliance on durable solution arguments. For example ATLEU is aware of an applicant who was trafficked at a very young age, was unaware of her identifying personal details and had been in her trafficking experience for a significant period of time. As the child did not know any of her personal details other than the ones told to her by her trafficker(s), she could not be removed. Indefinite leave to remain was granted owing to these circumstances.

There seems to be very few residence permits issued for children when there is a related asylum claim. It is important to challenge any decision not to issue a residence permit. The Home Office policy guidance ‘Victims of Modern Slavery: Competent Authority Guidance’ instructs that the way to do this in the first instance is to seek a reconsideration or a review of the decision. This can be sent to the NRM Hub by email. The instructions state:

Reconsideration of a reasonable grounds or conclusive grounds decision

If a first responder or support provider wishes to submit additional evidence, or they raise specific concerns that the decision is not in line with published guidance, the Competent Authority must look at whether they wish to reconsider the decision. This is not a formal right of appeal and the decision should only be reconsidered where there are grounds to do so.

This informal arrangement does not extend to other parties such as legal advisors and non governmental organisations outside the NRM. However those third parties could ask a support provider or first responder involved in the case to request a reconsideration. A support provider or first responder is not obliged to consider that request or provide reasons for not making a reconsideration request.

If a legal representative or non governmental organisation outside the NRM requests a reconsideration from the Competent Authority they should be notified that:

Our policy in the published competent authority guidance clearly set outs that reconsideration requests of NRM decisions may only be made by first responders or support providers involved in the case. You are not the first responder or support provider involved in this NRM case so under the published guidance we cannot reconsider the NRM decision based on your request. There is no breach of our policy as you are not entitled to make a reconsideration request in our guidance.

It is open to you to request a reconsideration via a first responder or a support provider involved in the case. If a support provider or first responder submits a reconsideration request in this case it may be considered in line with the published guidance’.

The interpretation and application of this process has been inconsistent based on ATLEU’s experience. Clarification around questions such as why the request has to be made by the first responder or support worker and what aspect of the conclusive grounds decisions can be challenged via this process, i.e. the decision to identify or the decision concerning the residence permit or both aspects, is awaited.

The NRM Hub seem to be assessing the need for a residence permit for child victims in the same way as for adults, routinely without any assessment of best interests.

The Electronic Immigration Network has produced a good general appeal guide.

Pre-action protocol letter on lack of residence permit

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