Written by: Francis FitzGibbon QC
The plight of the Afghan child asylum seekers
There is renewed concern about the government’s intention to return children to Afghanistan when their asylum claims have been rejected. The Refugee Council issued a statement urging the government to rethink its plans.
In fact, this is old news. In May 2010 the European Commission published its Action Plan on Unaccompanied Minors (2010-2014). It set out the difficulties for member states which receive unaccompanied asylum-seeking children from across the world, notably Afghanistan. Welfare is identified as the key issue as it has to be, to ensure that governments comply with the 1989 UN Convention on the Rights of the Child. On the face of it, the Commission paper does not read as a cruel charter of forced repatriation for children. It tackles among other things the urgent need to identify and care for children who have been trafficked. In line with welfare-based human rights principles it recognizes that ‘it is likely that in many cases the best interest of the child is to be reunited with his/her family and to grow up in his/her own social and cultural environment’.
A change of policy?
However, there remains considerable tension between the state’s obligation to protect children, and its desire to return ‘failed asylum seekers’ to their country of origin when they have exhausted all legal attempts to remain in the host country. In June 2010 the Home Office Minister, Baroness Neville-Jones, was asked in the House of Lords what proposals the government had for the return of unaccompanied child asylum seekers to Afghanistan. She said this:
‘The House may be aware of press reports that have appeared on this issue in the past week, which may have misled. I assure the House straightaway that only unaccompanied children for whom satisfactory care and integration assistance can be provided will be returned. What is being proposed is part of that assistance. The UK is tendering for integration services for all forced-returned Afghans – that is, not just children. If that tender process identifies suitable provision for some Afghans in the 16 to 17 age bracket, then indeed it might be possible to return them. Children under that age will not be returned, but even in that age group that will depend on individual cases and the assistance that can be provided. We doubt that there will be big numbers.’ (See Hansard 10th June 2010)
Has this policy changed? In January 2011, following on from the 2010 Action Plan, the Netherlands, Norway, Sweden and the UK set up the ‘European Return Platform for Unaccompanied Minors’ under the direction of the Swedish Migration Board. It aims ‘to find new methods for the return of unaccompanied minors that need to return home after receiving a final rejection of their asylum application’ and ‘to develop methods and contacts in order to find the parents of the minors who must return home, but also to find safe and adequate shelter in the country of origin. No minor will return home without a safe and orderly reception. The right to be reunited with the parents is stated in the Convention on the Rights of the Child’.
Negotiations are said to be in progress with the authorities in Iraq and Afghanistan.
The Home Office’s issued its most recent ‘Operational Guidance Note’ on Afghanistan to its officials in March 2011. Under ‘Minors Claiming [Asylum] in Their Own Right’ it gives the following guidance: ‘Minors claiming in their own right who have not been granted asylum or HP can only be returned where (a) they have family to return to; or (b) there are adequate reception and care arrangements. At the moment we do not have sufficient information to be satisfied that there are adequate reception, support and care arrangements in place for minors with no family in Afghanistan. Those who cannot be returned should, if they do not qualify for asylum or humanitarian protection, be granted Discretionary Leave for a period as set out in the relevant Asylum Instructions.’
This direction derives from decisions by UK Courts, which are themselves based on a thorough assessment of the evidence of extraordinarily harsh conditions for orphans and separated children. They may be at no greater risk of violent death in armed conflict than adults (which is high and utterly intolerable in any European country) but they are also liable to be forced into militias as fighters or suicide bombers, or trafficked as prostitutes, or made to undertake forced labour or face destitution. This evidence led the specialist Asylum and Immigration Tribunal to decide in the case of LQ (Afghanistan) in 2008, followed and extended by later cases, that orphans and separated children constituted a ‘particular social group’ for the purposes of the Refugee Convention, and as such they are entitled to refugee status because every member of that group is at risk of persecution in Afghanistan. It is only if a returning child can fit into a protective family network that law and policy permit them to be returned. So if a child can satisfy the Home Office, or the Tribunal if she has to appeal against the Home Office, that she has no family to return to, she must be allowed to stay in the UK. As with any other appellant, a child has the burden of proving that she has at least taken reasonable steps (such as by contacting the Red Cross) to find out if she still has family members in Afghanistan. Another critical legal imperative is to safeguard and promote the welfare of children, a duty imposed on the Home office by the Borders Citizenship & Immigration Act 2009, Section 55. In 2011 the Supreme Court backed this up in the case of ZH (Tanzania) stressing that in taking decisions whether to remove children the Home Office must ensure that their best interests are being protected.
What the European Return Platform for Unaccompanied Minors initiative appears to be doing is developing ‘adequate reception, support and care arrangements in place for minors with no family in Afghanistan’ of the sort that do not exist at present. Until it becomes known what the arrangements are, no one can say if they will be ‘adequate’ to overcome or at least mitigate the suffering that lone children will go through in Afghanistan. In a country where welfare and life itself are so dependent on family and kinship, and where civil society is so threatened by extreme violence, it is difficult to see how a stable and durable alternative can come into being. Until that happens, policymakers and the Courts which scrutinise them will struggle to displace the reasoning behind LQ.
Some children as young as 13 or 14 make the journey from Afghanistan to the UK. They come by air, with false papers; or travel overland, hidden in lorries and smuggled across borders. There are often disputes about their age. The children may not know. Afghanistan does not have the capacity to issue birth certificates. Expert paediatric evidence can sometimes be used to settle the matter in the UK. For some years the Home Office policy has been to grant ‘discretionary leave to remain’ to those whom it does not recognise as refugees, which normally runs until shortly before they turn 18. At 18 the protections given to orphan children cease, and in the Home Office’s view, removal is feasible and lawful. At that point they will apply for further leave to remain, and appeal if it is refused. The key issue then is often whether during those highly formative teenage years they have built up a strong family or private life in the UK. If it is thought that removal from that life would be a disproportionate interference with rights under Article 8 of the European Convention on Human Rights, it will not take place. Each case turns on its own facts, but commonsense and evidence suggest that it is difficult for a teenager given reasonable opportunities not to develop what the Convention recognises as private and family life during their time here. The decision is frequently whether removal to Afghanistan would have such a disruptive effect on the child that the State should not be allowed to pursue its legitimate policy of maintain faire and proper immigration control in the individual case.
Policymakers, then, are caught between three imperatives: a legal imperative not to expose returnees to a real risk of persecution or serious ill treatment, and not to interfere disproportionately with strong family and private life; a political imperative to be seen to be doing something about failed asylum claims; and a practical imperative, of how to make proper provision for returnees who are no longer welcome in the UK.
Baroness Neville-Jones forecasts that the numbers of forcibly returned 16 and 17-year olds will not be big. In 2010 the Home Office received 547 applications for refugee status from Afghan children. It is hard to see how any of them can lawfully and safely be sent back while Afghanistan remains a death trap for lone children.