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England

Support for unaccompanied children claiming asylum

Social services are responsible for supporting people under 18 who claim asylum and do not have adult family members with them or who they could join.

This content applies to England

Social services duties to unaccompanied children

Under the Children Act 1989, social services are responsible for asylum applicants below the age of 18 who:

  • arrive in the UK unaccompanied

  • do not have adult close family members already in the UK whom they could join

If the initial Home Office age assessment indicates the asylum seeker is an adult but a subsequent assessment results in a finding the person is a child, the asylum seeking child becomes the responsibility of social services.[1]

Under statutory guidance, local authorities must conduct a comprehensive assessment of a child's needs and put into place special provision to 'support dialogue' with these children during assessment. [2] The assessment must, where applicable, consider the child's needs resulting from them being the victim of human trafficking or being an unaccompanied asylum seeker child.[3] The assistance may involve the provision of food, accommodation, foster carers, leisure, language assistance and trauma counselling.

Responsible authority

Unaccompanied asylum-seeking children are the responsibility of the local authority in the area where they are physically present.

It is possible for more than one authority to be responsible at the same time if a child has a link to more than one area, for example, because they attend school in a different area than where they live.[4]

Age assessment

The courts have given guidance on the appropriate processes to be adopted when a local authority is assessing a young person’s age.[5]

Assessments complying with these principles are described as 'Merton compliant'. This requires that a young person must be given the opportunity to:

  • respond to provisional adverse findings

  • have an 'appropriate adult' present in age assessment interviews

Case law has established that:[6]

  • age is a matter of fact and it is for the court to determine the age of an individual where this is disputed

  • the starting point in the absence of documentary evidence of age is the overall credibility of the young person

  • age cannot be determined solely from appearance and demeanour, except in clear cases

  • a local authority should give the applicant the benefit of the doubt and treat them as a child where their assessed age is close to 18, acknowledging a potential margin for error

  • authorities should carry out a reasonable investigation and adopt a fair process, giving the person an opportunity to contribute and respond to the authority's findings

  • the presence of an 'appropriate adult' is not a legal requirement, so the question is whether a fair interview process requires their attendance in a particular case

In one case, where the individual's first language was not English, the combination of a lack of an interpreter, the absence of an appropriate adult, and flaws in the 'minded to' process did not allow the individual a fair opportunity to respond to the authority's findings. The High Court held that this made the assessment process unfair.[7]

The Association of Directors of Children's Services (ADCS) and the Home Office have provided joint working guidance on how staff in the Home Office and local authorities should cooperate by sharing information related to age assessment where either disputes the age of a person claiming to be a child. ADCS has also published Age Assessment Guidance to assist social workers undertaking age assessments.

Further information on age assessments is available from Coram Children's Legal Centre.

From 2024, decision makers can also rely on dental x-rays, hand and wrist radiographs, and MRI of the femur, tibia and clavicle to settle disputes around the age of asylum-seeking people who claim to be children but do not have enough evidence to prove it.[8]

Accommodation pending an age assessment

The statutory guidance on supporting migrant children and victims of slavery advises that where the person’s age is being disputed, social services are required to treat them as a child unless and until a case-law compliant age assessment confirms the person is an adult.[9]

The non-statutory guidance on age assessments reminds local authorities that if there is doubt whether the person is a child, the dangers of treating a child as an adult ‘are in almost all cases far greater than the dangers of taking a young adult into your care’.[10]

The High Court has held that where a local authority could not reasonably argue that the asylum seekers’ appearance and demeanour strongly suggested they were over 25 years old, there was a duty to treat them as children pending an age assessment and provide suitable accommodation under the Children Act 1989.[11]

Dispersal

A local authority may ask another authority to take over its duties towards an unaccompanied asylum-seeking child. The 'transfer of responsibility' provisions in the Immigration Act 2016 are designed to provide a more equitable distribution of responsibility throughout English local authorities. Under these provisions, a local authority (the 'first authority') can request another local authority (the 'second authority') to take over the duties towards the unaccompanied child. Once the second authority has accepted responsibility, the child is treated as never having been ordinarily resident in the first authority's area.[12]

If the second authority does not comply with the request, the Home Office can direct it to provide the first authority with written reasons for its decision.[13]

The transfer of responsibility scheme is currently voluntary, but the Home Office has the power to devise a scheme under which it can direct local authorities to accept responsibility for an unaccompanied child.[14]

Support after the person turns 18

An asylum-seeking child who reaches the age of 18 should be accommodated by UKVI under the provisions for asylum seekers unless they:

  • are a former relevant child

  • have an eligible need for care and support which is not solely caused by being destitute 

If one of the above applies, local authority social services would be responsible for providing support under either the Children Act 1989 or the Care Act 2014

Last updated: 16 January 2024

Footnotes

  • [1]

    R (Birmingham CC) v Croydon LBC [2021] EWHC 1990 (Admin).

  • [2]

    Working Together to Safeguard Children, DfE, 2018.

  • [3]

    Regulation 5(1)(f) Care Planning, Placement and Case Review (England) Regulations 2010 SI 2010/959 as inserted by reg 3(2) Care planning and Care Leavers (Amendment) Regulations 2014 SI 2014/1917.

  • [4]

    R v Wandsworth LBC, ex parte Stewart [2001] EWHC Admin, [2002] 1 FLR 46.

  • [5]

    R (on the application of B) v Merton LBC [2003] EWHC 1689; FZ v Croydon LBC [2011] EWCA Civ 59.

  • [6]

    R (on the application of A) v Croydon LBC and Secretary of State for the Home Department: R (on the application of M) v Lambeth KBC and Secretary of State for the Home Department [2009] UKSC 8; R (on the application of AE) v Croydon LBC [2012] EWCA Civ 547; Bedford CC v GE (Eritrea) [2017] EWCA Civ 1521; (1) KA (2) NBV v Croydon LBC [2017] EWHC 1723 (Admin); R (on the application of AYP) v Islington LBC [2022] 5 WLUK 218 ; HAM, R (On the Application of) v London Borough of Brent [2022] EWHC 1924 (Admin).

  • [7]

    SB (A Child), R (On the Application Of) v Royal Borough of Kensington & Chelsea [2022] EWHC 308 (Admin).

  • [8]

    reg.2 Immigration (Age Assessments) Regulations 2024 SI 2024/19.

  • [9]

    para 8, Care of unaccompanied migrant children and child victims of modern slavery, Department for Education, November 2017.

  • [10]

    p.33, Age Assessment Guidance, Association of Directors of Children’s Services (ADCS) and Home Office Age Assessment Joint Working Guidance (JWG), October 2015.

  • [11]

    R (on the application of AB) v Brent LBC [2021] EWHC 2843 (Admin).

  • [12]

    s.69 Immigration Act 2016; reg 2 Immigration Act 2016 (Commencement No. 1) Regulations 2016 SI 2016/603.

  • [13]

    s.71 Immigration Act 2016.

  • [14]

    s.72 Immigration Act 2016.