This is a briefing note designed for use by professionals supporting children and young adults leaving care who are seeking asylum in their own right – particularly those who will have arrived in the UK on or after 7 March 2023. It does not constitute legal advice for any particular case.
It should be noted that due to the way the Illegal Migration Act 2023 (IMA) has been partially brought into force there is currently a great deal of uncertainty regarding asylum cases for those who arrived in the UK after 7 March 2023. This presents challenges for those who are supporting vulnerable young people who are at risk of exploitation and may find a lack of certainty regarding their futures in the UK very distressing.
What is the Illegal Migration Act?
The Illegal Migration Act 2023 was passed last year. It changes the way asylum claims are processed in the UK. It aims to limit the people who can claim asylum in the UK to those who have entered with permission (sometimes referred to as ‘legally’). It also changes the way people who are refused permission to stay in the UK can challenge those decisions. Some parts of the Act have been brought into force, but most of it is not yet in force.
The provisions of the Act affect both Adults and Children – this briefing will concentrate on people who arrived in the UK as children (they were under 18 at the time of arrival).
Which Children does this affect?
The provisions of the IMA affect two groups of children in particular:
Those who arrived between 7 March 2023 and 20 July 2023
- These children are effectively in limbo
- The DUTY to remove does not apply to these children while they are under 18
- As the law currently stands they are not entitled to be granted asylum, however their claims may be accepted (so children may be issued SEF forms)
- Leave to be granted relies on a part of the Immigration Rules which has yet to be written
Those who claimed asylum after July 2023
- This was the date that the Act was passed and therefore all provisions when in force will begin at this date, unless it is backdated
- There is again no duty to remove while a child is under 18, but there is a power
- The Act also contains power to detain children, thought it is unclear how this would work in practice
- The Act confirms that no leave can be granted while an age dispute is ongoing
- As with the previous cohort while the Act provides that some form of leave may be granted to children, this would be contained in the Immigration Rules but currently is not
What about other children
Children who claimed asylum before 7 March 2023 and are from Afghanistan, Eritrea, Sudan, Syria or Vietnam are eligible to be part of the Streamlined Asylum Process.
Rather than having a SEF form completed with a statement and an interview, they should be invited to a Preliminary Information Meeting (PIM). This should be shorter than a full interview. They can have a lawyer and a responsible adult present, but the meeting is not considered an interview by the Home Office and may not be postponed if the child has no lawyer.
If the Home Office cannot grant asylum on the basis of the PIM they can call the child back for a full interview.
Children from other countries remain on the process as it was. Claims can still be certified in some cases which means the child will be without an in country right of appeal.
What about Rwanda
As the law currently stands children should not be sent to Rwanda. However, the way the IMA works it is difficult to stop people being sent to Rwanda while a court challenge is underway. This, and the provisions that stop leave to remain in the UK being granted while an age dispute is underway mean that it is possible that children whose ages are disputed may be sent to Rwanda.
Impact on Children
There will be a number of children currently in the UK who will turn 18 before the state of the law is resolved. Some will have already turned 18. There are no provisions that allow for processes to take this delay into account.
There are concerns that the knowledge that they will not be able to have long term leave to remain in the UK will make children more vulnerable to exploitation. This will need to be taken into account when planning their care.
Briefing by: Sian Pearce – Child Immigration Expert and current ESRC funded PhD Student