Human Rights Considerations for Care Leavers

Human Rights Considerations for Care Leavers:

______

1. Care Leavers:[1]these are young people who have looked after by the Local Authority whilst children for over 13 weeks or more between the ages of 14-18 and are therefore owed continuing duties post-18 under the ss. 23C–E Children Act 1989.

1. Assessment of need and welfare: Although referred to by practitioners and by some judges the term human rights assessment has no statutory basis. Human rights considerations can be addressed in assessments of need. The Children Act 1989 has at its core the concept of the assessment of need and welfare and thereafter service provision based on that assessment. What material should be considered is for a Local Authority to decide. Problems arise when the machinery of the immigration and asylum process conflict with the safeguarding and welfare processes of the Children Act 1989 as amended.

1. Corporate parenting: for children under 18 that they are looking after, the Local Authority steps into the shoes of their parent. This concept of corporate parenting extends to care leavers where the Local Authority is under continuing legal duties to a care leaver. As with any other parent, guidance and support will be necessary so that a young person may stand a chance of coping on their own when they are ready. For example a young person will need guidance and support to pursue their educational aspirations and plan for their future. It is the duty of the Local Authority to support such plans and ambitions to the extent that the care leaver’s welfare and educational needs require it. Arguably, this would encompass supporting a care leaver access legal advice, perhaps in connection with an application for leave to remain. Again this is a matter for assessment of need and consequent service provision.

1. Withholding and withdrawing support: Schedule 3 of the Nationality Immigration and Asylum Act 2002 imposes restrictions on the availability of leaving care duties to certain types of care leavers: these include care leavers who are failed asylum seekers or who are otherwise unlawfully present in the UK. However, the continuing duties under sections 23C-E of the Children Act 1989 can be provided if support is required to avoid (i) a breach of the young person’s Convention rights or (ii) EC Treaty rights.

It is convenient to briefly set out the relevant statutory provisions here:

Section 54 of the Nationality Immigration and Asylum Act 2002 refers to Schedule 3 of that Act which makes provisions about withholding or withdrawing support in certain circumstances.

Schedule 3 provides as follows:[2]

SCHEDULE 3

Withholding and Withdrawal of Support

Ineligibility for support

1(1)A person to whom this paragraph applies shall not be eligible for support or assistance under—

……….…………….

(g)section 17, 23C, 24A or 24B of the Children Act 1989 (c. 41) (welfare and other powers which can be exercised in relation to adults),

…….……..……..

(k)section 2 of the Local Government Act 2000 (c. 22) (promotion of well-being),

(l)a provision of the Immigration and Asylum Act 1999 (c. 33), or

……………….

(2)A power or duty under a provision referred to in sub-paragraph (1) may not be exercised or performed in respect of a person to whom this paragraph applies (whether or not the person has previously been in receipt of support or assistance under the provision).

(3)An approval or directions given under or in relation to a provision referred to in sub-paragraph (1) shall be taken to be subject to sub-paragraph (2).

However, the of ineligibility can be rebutted as stated in paragraph 3 of Schedule 3,

3. Paragraph 1 does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of—

(a)a person’s Convention[3] rights, or

(b)a person’s rights under the Community Treaties.

The classes of ineligible people are set in Schedule 3 as being:-

First class of ineligible person: refugee status abroad

4. (1)Paragraph 1 applies to a person if he—

(a)has refugee status abroad, or

(b)is the dependant of a person who is in the United Kingdom and who has refugee status abroad.

(2)For the purposes of this paragraph a person has refugee status abroad if—

(a)he does not have the nationality of an EEA State, and

(b)the government of an EEA State other than the United Kingdom has determined that he is entitled to protection as a refugee under the Refugee Convention.

Second class of ineligible person: citizen of other EEA State

5.Paragraph 1 applies to a person if he—

(a)has the nationality of an EEA State other than the United Kingdom, or

(b)is the dependant of a person who has the nationality of an EEA State other than the United Kingdom.

Third class of ineligible person: failed asylum-seeker

6(1)Paragraph 1 applies to a person if—

(a)he was (but is no longer) an asylum-seeker, and

(b)he fails to cooperate with removal directions issued in respect of him.

(2)Paragraph 1 also applies to a dependant of a person to whom that paragraph applies by virtue of sub-paragraph (1).

Fourth class of ineligible person: person unlawfully in United Kingdom

7. Paragraph 1 applies to a person if—

(a)he is in the United Kingdom in breach of the immigration laws within the meaning of section 11, and

(b)he is not an asylum-seeker.

1. Support to avoid a breach of a Convention right: In respect of paragraph 3(a) of Schedule 3 above, this will necessarily involve a Local Authority seeking to withdraw or withhold support relying on Schedule 3 to conduct an assessment which identifies the needs of the care leaver and then assesses whether those needs require being met to avoid a breach of the care leaver’s Convention rights. Commonly these will be Articles 3 and 8[4]. The term ‘human rights assessment’ is to this extent misleading because what is expected of a Local Authority in respect of any young person seeking support is to consider their needs, Convention rights being part of that composite assessment process.

1. A common problem is the way in which the assessment of need of a care leaver who falls into one of the categories of people excluded from support by Schedule 3 is conducted. Often care leavers who are provided with support on the basis that a failure to do so would be a breach of their Convention rights are given a bare minimum of level of support on the misunderstanding that in such circumstances the Local Authority is only required to provide services which just overcome breaching Convention rights. This is an incorrect approach and serves to dilute the performance of a statutory duty. In R(VC &Ors) v Newcastle City Council [2011] EWHC 2673 (Admin) Munby J gave a useful illustration of the distinction between Children Act services and those required to avoid a breach of Convention rights.

“para.87 -….section 4… provid[es] “an austere regime, effectively of last resort, which is made available to failed asylum seekers to provide a minimum level of humanitarian support. Section 17 in contrast is capable of providing significantly more advantageous source of support, its purpose being to promote the welfare and best interests of children.”

1. Although in VC the Court was concerned with the contrast between Section 4 (NASS) support and s.17 Children Act 1989 support, the principle is equally applicable to services provides to care leavers. The key word to focus on is the word ‘welfare.’ It appears throughout the Children Act 1989 and in respect of care leavers at section 23C(4).

s.23C (4)It is the duty of the Local Authority to give a former relevant child—

(a)assistance of the kind referred to in section 24B(1), to the extent that his welfare requires it;

(b)assistance of the kind referred to in section 24B(2), to the extent that his welfare and his educational or training needs require it;

(c)other assistance, to the extent that his welfare requires it.

Of course the issue of what services may be provided is a matter for assessment but it would be a distortion of the concept of providing services to the extent that a young person’s welfare requires it to take an approach that a minimum level of humanitarian support (as with s.4 (NASS) support) would be an appropriate threshold.

1. Clue: The case of R(Clue) v Birmingham City Council [2010] EWCA Civ 460 gave useful guidance on the approach to be taken by Local Authorities faced with an applicant for services who has an outstanding application for leave (based on Article 8 in that case) which has not been formally recorded.

1. The formal recording of a claim or acceptance of a fresh claim for leave to remain by the Secretary of State for the Home Department has the effect of deeming that person to be an asylum seeker for support purposes (see s.94 Immigration & Asylum Act 1999) and therefore not within any of the classes of people caught by Schedule 3. They would still be a person subject to immigration control though.

1. In the case of Clue the Claimant was a Jamaican national who had overstayed her visa but had made an application for leave to remain based on Article 8 grounds on the basis that she had 3 children whose father was British and to expect her to leave the UK would be a disproportionate interference of her private and family life. The application was not obviously hopeless or abusive.

1. She sought support from the Local Authority under s.17 of the Children Act 1989. The Local Authority found that as she was unlawfully present in the UK, she was caught by Schedule 3 and therefore went on to consider whether the failure to support would breach her Convention rights. In deciding to refuse support the Local Authority concluded that Ms Clue could avoid a breach of her Convention rights by taking up the Local Authority’s offer to assist her and her family to travel to Jamaica.

1. The Court of Appeal found this to be unlawful. The Court held that,‘save in hopeless or abusive cases, the duty imposed on Local Authorities to act so as to avoid a breach of an applicant’s Convention rights does not require or entitle them to decide how the Secretary of State will determine an application for leave to remain or, in effect, determine such an application themselves by making it impossible to pursue it.’[5]

1. In Clue the Claimant’s outstanding application for leave to remain was a legal barrier to her and her children going to Jamaica. In a different case there may be a practical barrier to a person leaving the UK such as no route of return, no travel documents etc. It is important to always consider the legal and practical (or indeed any other) barrier to leaving the UK.

1. Article 8 is not an unqualified right but it is right which can only interfered with by a public authority ‘such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’ An assessment as whether an interference with a person’s Article 8 rights is lawful will require a careful balancing exercise by that public body.

1. The Court in Clue gave useful guidance on Article 8 considerations. It underlined the need to not only consider the impact onfamily life but also on private life. It also emphasised that where a person has an outstanding claim for leave to remain (which is not hopeless or abusive) then the financial resources of the local authority are irrelevant. Whereas where there is no outstanding claim for leave to remain then the Local Authority is entitled to consider its resources when conducting the proportionality balancing exercise required before a person’s Article 8 rights can be interfered with. [6]

1. A justified and proportionate interference: As the case of Clue highlights, even where there is no outstanding application for leave to remain a careful balancing exercise must be undertaken when considering whether a breach of a person’s Convention rights can be justified. It is a process of assessment, a skill in which social workers will be experienced but it is important to note that the consideration of Convention rights cannot be done in a vacuum devoid of welfare considerations. In the case of a care leaver with no outstanding claim for leave all factors must be considered such as the length of time present in the UK, any family connections, educational ties, social support networks, health considerations, the likely impact on emotional and mental well being if support were to be withdrawn, how long support is being sought for etc.

1. Case Study:

The issues below have been set out to flag some of the tricky issues concerning migrant care leavers that might present themselves to practitioners.

(a)Reza will be 19 years old in December 2012. He came to the UK from Iran on a visitor’s visa when he was 14 years old to stay with an uncle in London. He ran away from his uncle’s house a year later and was looked after the Local Authority as he did not want to go back to his uncle under any circumstances.Reza does not have any formal Iranian ID documents.

(b)Reza’s family in Iran were persecuted by the Iranian authorities. He had no little or no contact with his parents but soon after becoming looked after he discovered that his step-brother was in London and he began to visit him periodically. With the support of his social worker Reza made an application for asylum, enrolled at school and did well with his studies.

(c)Reza’s asylum application was refused but he was granted discretionary leave to remain until his 17th ½ birthday. His social worker helped Reza access proper legal advice by working with reputable refugee support organisations to help him find a solicitor. Reza obtained advice on submitting an application to vary his discretionary leave to remain, (often known as an application to extend leave to remain), which was submitted in time before his current leave ran out.

(d)However, Reza suffered from flashbacks and persistent nightmares. He did not feel settled at all and would not be able to sleep properly. His mood was low and concentration was poor. The problems did not seem to go away with time. Reza received treatment from his psychiatrist and psychologist. Just before his 18th birthday Reza revealed to his psychologist that he was sexually abused in Iran and that such abuse continued in London at his ‘uncle’s’ house (who was in fact not related to him). Reza confided that he was treated as a prisoner and domestic slave in his ‘uncle’s’ house. The psychologist asked Reza if he could inform his social worker with whom Reza had a good working relationship. He agreed.

(e)After he turned 18 a number of negative things happened to Reza. His social worker was changed to someone who he did not get on with, his application to vary his leave to remain was refused, his subsistence payments were reduced to £45.00 per week and he was given a week’s notice to move to room in a shared house far from his college and his psychologist.

(f)Reza’s new social worker called him for a meeting and he told him that he had that day received notification from the UK Border Agency that his application for leave to remain had failed 2 weeks ago and that the Local Authority had to now consider whether it could continue supporting him. He told Reza that he had already conducted a Human Rights Assessment and concluded that Reza could go back to Iran using the voluntary assisted return and reintegration package. He said that the Local Authority would support Reza for a further 28 days with a room and £30 per week to combat the effects of destitution whilst he applied for the VARRP and not any longer.

18. Some issues arising:

• Consistent with the Local Authority’s need to act in Reza’s welfare interests it should be asking itself how support can be continued, not how it can be terminated.

• Reza has not yet exhausted his appeal rights; he has 28 days from any refusal to appeal and continues to have leave on the same terms for 28 days after any refusal. See section 3C of the Immigration Act 1971 - where an application to vary leave is made before it has expired then the applicant will continue to have same leave on same terms until it is determined and for a period of 28 days thereafter (to allow an appeal to be pursued).

• The Local Authority should have appointed a personal adviser (s.23C(3)(a) Children Act 1989), prepared an assessment of needs and reviewed his Pathway Plan (s.23C(3)(b) Children Act 1989). The Pathway Needs Assessment and Plan are key documents which should lawfully assess his needs and set out what services the Local Authority will provide to meet those needs now and plan for his future. The Pathway Plan is an appropriate document to consider the interference on Reza’s Convention rights if support is withdrawn.

• The Pathway Plan should be kept under regular review and should be “a detailed operational plan. Just how detailed will depend upon the circumstances of the particular case. Sometimes a very high level of detail will be essential. But whatever the level of detail which the individual case may call for, any care plan worth its name ought to set out the operational objectives with sufficient detail – including detail of the 'how, who, what and when' – to enable the care plan itself to be used as a means of checking whether or not those objectives are being met.” (as per Munby J at § 46, R(J) v Caerphilly CBC [2005] EWHC 586 (Admin)).

• Does the Local Authority have to do anything with the information that Reza has been exploited by his ‘uncle?’ Applying the positive duty on the State under Article 4 ECHR and all the safeguarding provisions under ss.10 & 11 of the Children Act 2004 the Local Authority acting as first responder could make a referral to the Competent Authority for an assessment as to whether Reza is a victim of trafficking. Arguably, waiting for such a determination would constitute a legal barrier to removal. Reasonable grounds decisions should be made in 5 days with conclusive grounds 45 days thereafter but these timescales are sometime not adhered to.

• Applying the concept of the Local Authority acting as Reza’s corporate parent it is arguable that Reza ought to be assisted in securing appropriate legal advice to help him appeal the refusal. Assume that this has been done. Can the Local Authority refer Reza to NASS to seek s.95 support? The Court of Appeal considered the position in the case of R(SO) v Barking & Dagenham LBC [2010] EWCA Civ 1101. The Court held that a power to accommodate by way of NASS support cannot override a duty under theChildren Act 1989. It is important to note that support provisions under s.95 (for asylum seekers) and s.4 (for failed asylum seekers) are residual powers which are exercised at the discretion of the Secretary of State for the Home Department. Statutory duties at s.23C of the Children Act 1989 are mandatory and where someone can show that they fulfil the criteria for entitlement under s.23C then the Local Authority must perform that statutory duty. The Court said in SO v Barking at § 40 that,

‘….since the powers under s.95 (and s.4) of the Immigration and Asylum Act 1999 are residual, and cannot be exercised if the asylum seeker (or failed asylum seeker) is entitled to accommodation under some other provision, a Local Authority is not entitled, when considering whether a former relevant child's welfare requires that he be accommodated by it, to take into account the possibility of support from NASS.’