Agenda item

To consider a report on the Council’s roles and responsibilities in relation to the immigration status of Looked after Children.

RECEIVED a report updating the Committee on the key implications for LAC without a settled immigration status.  The report was included in the agenda pack (pages 27 to 35 to 23). 

NOTED that There were three main categories of looked after children and young people and care leavers who may be subject to immigration control.

i)      Unaccompanied Asylum Seeking Children (UASC) how tended to get Leave to Remain until the age of 17 an a half.

ii)     Children and young people brought into the UK from outside the EU as visitors and who remain in the UK after their period of leave expires and have become looked after children. This excluded children who had been privately fostered and were known to Children’s Services as they were not looked after children. Children from families without recourse to public funds (NRFP) were also not looked after.

iii)   Children from within the European Union.  European Economic Area (EEA) nationals could access public funds but may be prevented from claiming public funds if they did not satisfy the eligibility criteria attached to a specific welfare benefit or council housing allocation. Eligibility related to the basis on which the EEA national was living in the UK. EEA nationals have a right to reside in the UK as long as they are exercising Treaty Rights in the UK; this meant working (including being a job seeker), studying, being self-sufficient or otherwise being incapacitated and therefore unable to work.  A former looked after child, in education and being supported by the local authority, may not be able to access income support or social housing.

The Council had general duties towards looked after children which were set out in

Section 22 of the Children Act 1989 and these apply irrespective of the child’s 

Immigration status.  The general duties were:
 

• To safeguard and promote a child’s welfare; and
• to make such use of services available for children cared for by their own parents as appears to the authority reasonable in this case.

The Committee were advised that duties were discretionary and therefore were not mandatory, which left significant scope for Judicial Reviews being taken out against local authorities. The process of resolving a child’s immigration status was considerably easier as an undertaking than it was once they reached adult hood. In considering a child’s welfare the authority should also try to ascertain their wishes and feelings having regard to their age and understanding. In the event that the child’s immigration status was not resolved before the age of 16, this should be considered as part of the planning for the child’s transition to the leaving care service.  In order to qualify for leaving care services a child must have been looked after for at least 13 weeks between the ages of 14 and 16 and for some time after their 16^th birthday.

The Committee was advised that there were significant consequences for care leavers whose immigration status remains unresolved in the UK at the age of 18. They were unable to access state support with housing, education and benefits. An application to the Visa and Immigration Service (VIS) in the Home Office for a right to remain would also treated less favourably once they reached 18. If an application to VIS was made before age 18 one of the criteria is to have lived continuously in the UK for at least seven years. If the application to remain takes place when the care leaver is aged between 18 years and 25, the bar is raised considerably as the criteria means they have to have spent at least half their life in the UK or at least 20 years resident in the UK. 

The Immigration Act 2016 came into effect in May 2016. One of the drivers behind this Act was that the current Government did not consider that the Children Act 1989 was the appropriate mechanism for providing support to adult care leavers when the courts have determined that the care leaver has no lawful basis to remain in the UK and could return to their country of origin.

In response to a question from the Committee, officers advised that they had recently commissioned a policy writer to look at the authority’s policies across the board in relation to the immigration status of LAC, how the policy evolved would be determined by expert legal advice. In response to a question around increased figures as a result of the refugee crisis in Syria, officers advised that the Government were also looking at a nation strategy for the dispersal of refugees from Syria to ensure that the spread across local authorities was equitable.  The Chair requested a further update on the immigration issues for LAC to the next meeting of the Committee.

Action: Dominic Porter Moore