Migration Regime Shuvra Chowdhury *
2. The best interest principle and unaccompanied asylum seeking children
3.2. Difficulties in the Asylum Process
There are specific legal barriers faced by the UASC in the asylum process i.e.
credibility test, lack of legal advice and delay in decision giving. Moreover, assessment of age is also very crucial for the UASC to receive the protection under the protective framework of law.
Credibility Test: In immigration and asylum applications, decisions have been taken considering the credibility of the UASC as in civil matters, burden of proof lies with the applicant. Sheona and Richard argues that the decisions making about the UASC is always guided by credibility though, this is applicable to the adult asylum seeker. The focus on the credibility can be found in the primary legislation37 and also in the Home Office guidance.
The UASC should not be required to give details of their experiences like a matured person. In the UK’s Immigration Rules, there is a particular section on the UASC regarding their procedural rights. Judith Ferby argues that there should be three particular characteristics of the meaningful assessment of UASC i.e. flexibility that means procedures not unduly restrictive, shared responsibility and benefit of doubt.38 Unfortunately, these features are rarely seen in the entire assessment process of the UASC.
After arrival in the UK, UASC are the subject of screening interview to know about the personal information, brief history of journey to the UK and the causes of the claim. It was held in AN (a Child) & FA (a child) v SSHD39 that a child can be interviewed when an apporpriate adult is present but the reports show that interviews are carried out without a solicitor or a responsible person.
John acknowledges that asylum process is a ‘double hybrid’ as it blends the ingredients and ideas from executive and punitive law involving the procedures of inquisitorial and adversarial systems. Whereas, Immigration courts are required to assess the testimony of the UASC but the government has not drafted any guidelines for assessing the credibility.40 Moreover, the
36 Bokhari (n 1) 3.
37 Asylum and Immigration (Treatment of Claimants) Act 2004, s 8.
38 Ferby (n 8) 254.
39 [2012] EWCA Civ 1636.
40 John R Campbell, ‘Examining Procedural Unfairness and Credibility Findings in the UK Asylum System’, (2020) Refugee Survey Quarterly 39, 60.
caseworkers in the Home office are not properly trained up to conduct a thorough interviews of the UASC. Due to the hostile and confrontational nature of the interviews, the UASC are unwilling to provide information which may have crucial importance to their applications. There is a strict time constraint on the part of the interviewers which forced them to conclude the interview promptly and to reach a decision without assessing all the essential evidences.41
Even the Immigration judges are facing obstacles to communicate with the UASC for assessing the credibility effectively because of wrong translation, interpretation difficulties in oral hearing and improperly maintained serial of transcription of interviews.42 According to Bryne, the direct application of conventional features of credibility i.e. ‘demeanour, corroboration, consistency and accuracy’ will distract the information gathering process and lead to inappropriate decision in the asylum process.43 Now, the ‘core principles’
enunciated by the Court of Appeal in AM (Afghanistan) and SSHD and Lord Chancellor44 will play as a guide to the determination of asylum application made by a UASC who is unable or less-able to participate effectively in the asylum proceedings.
Complicated Age Assessment Process: Crawley states a ‘culture of disbelief’ that pervades the asylum process generally. The UASC are experiencing particular hostility because of the assumption that they have lied about their age and not getting the benefits of child-focused interviewing techniques, legal representation or the presence of an appropriate adult. The worse thing is that the UASC was treated like ‘a slave in the slave market’ by the immigration officer of the Heathrow airport.45
To entitle the services offered by the CA 1989, the UASC have to face subsequent interview by the local authorities if there is any doubt about the age of the UASC. But local authorities are conducting interviews on regular basis even where no causes of suspicions or doubts are evident. In absence of any documentary evidence to prove the age of the UASC and subsequent doubt by the Home Office about their age, the age assessment procedure will be conducted by the local authority on the basis of the appearance and demeanour of the UASC. If the home office treats them as an adult, the local authority will have the
41 ibid, 61.
42 Evidentiary barriers include giving less weight to initial interviews, different versions of statements, less importance to the full account of the applicants and inconsistency in the examination process.
43 R. Bryne, ‘Assessing Testimonial Evidence in Asylum Proceedings: Guiding Standards from the International Criminal Tribunals’ (2007) International Journal of Refugee Law 19(4) 609.
44 [20017] EWCA Civ 1123.
45 Heaven Crawley, ‘Between a rock and a hard place: negotiating age and identity in the UK asylum system’, in Nigel Thomas (ed),Children, Politics and Communication, (Bristol University Press, Policy Press 2009) 90.
right to assess the age of the UMC further for determining their entitlement under the CA, 1989. Where the child disagrees with the outcome, the legal remedy is to challenge this by judicial review.46
The home office guidance for the measurement of age now have to follow the Merton Judgement47 which includes a number of basic principles.
Finally, the Association of Directors of Children’s Services (ADCS, 2015) has ben publisehd the best practice guidance for social workers on condcuting age assesment compliant with the Merton judgement and other relevant case laws.
For the purpose of assessing age, the use of skeletal, dental X-rays and radiography have been raised the question of ethics because it exposes radiation without therapeutic value.
Lack of legal aid: There is a significant reduction in the availability of legal aid for immigrant advice, after introducing amendment in 2013 in the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), 2012. As a result, UASC were not eligible for legal aid in their asylum claims.48 Sheona and Richard believes that this change deteriorates the immigration delivery service for the UASC. Two initiatives were taken in 199949 and 200450 to upgrade the quality of legal service in this area but both schemes were flawed from the beginning. It has been rightly remarked by Crawly that reform project relating to the UMC becomes ineffective because of the assumption that most of the UASC are taking chance in the asylum process.51 Meanwhile, the provisions on reduction of legal aid has already been amended in 201952. This amendment provides guidelines for separated children53 who are entitled to receive the legal aid for civil legal services in their asylum claims. In addition, it is evident that initial claims made by the UASC are failed because of the poor case preparation and wrong case strategies.54
46 Gina Clayton and Georgina Firth, Immigration and Asylum Law(8thedn, OUP 2018) 78.
47 B v London Borough of Merton [2003] EWHC 1689 [Admin.].
48 Ayesha Christie, ‘The Best Interests of the Child in UK Immigration Law’ (2013) 22 Nottingham L.J.
39.
49 Immigration and Asylum Act 1999 introduced a new regulatory body “office of the Immigration Supervision Commissioner (OISC).
50 The Services Commission (LSC) introduced a separate accreditation scheme.
51 Crawley (n 46) 90.
52 The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid for Separated Children) (Miscellaneous Amendments) Order 2019, Art. 2 of the Amended Order 2019 amends Sch 1 of the LASPO, 2012. http://www.legislation.gov.uk/ukdsi/2019/97801-11188903 last accessed 20 April 2020.
53 s 3(b) – separated means not being cared for by a parent, not being cared for by a person with parental responsibility for the Child (within the meaning of s 3 of the CA, 1989 (4) or looked after by a local authority (within the meaning of s. 107(6)(5) The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid for Separated Children) (Miscellaneous Amendments) Order 2019 <http://www.legislation.gov.uk/ukdsi/2019/97801-11188903> accessed 20 April 2020.
54 York and Warren (n 28) 44.
Lack of participation: Prof. Helen identifies that there is an abundance of evidences portray lack of participation on the part of the UASC at every level of the asylum process,55 which is a clear defiance of art. 12(1) of the UNCRC.56The UASC’s non-participation in the asylum process have been utilized to devalue their claims.57 Prof. Helen further identifies that adversarial nature of asylum proceedings also undermines the UASC’s right to participation. Without giving little attention to the children’s opinions, thoughts, feelings and desires rather the immigration officials are framing questions by using vague, confusing and closed question techniques. Moreover, they are not focusing questions which might support the UASC’s claims rather concentrate on peripheral details inappropriately and intrusively i.e. the child’s sexuality, intimate relationships and experiences of abuse, etc. This questioning procedure can be termed as hostile and interrogatory, where the UASC’s are feeling attacked and intimidated. Consequently, the Home office guidance proves ineffective to safeguard the right to participation of the UASC.
Delay in decision making: Though the Home Office guidance provides the best practice model for a UASC’s case but in practice the reality is different. There is specific time-limit for a decision to be given but statistics show that a significant number of cases have been waiting for more than two years. Consequently, the appeals are refused when the UASC have turned into 18. Therefore, long delay in the litigation process are causing disadvantage to the asylum claims of the UASC.