LATEST RESEARCH PAPERS AND ARTICLES

Age Assessment Guidance (Please click to read full article)

Do you need to undertake this assessment?

Checklist:

  •   Is it absolutely necessary to undertake this assessment?

  •   A needs assessment should be separate from an age assessment (though the age assessment may help to inform the needs assessment)

    Statutory guidance on the care of unaccompanied children states that ‘Age assessments should only be carried out where there is significant reason to doubt that the claimant is a child. Age assessments should not be a routine part of a local authority’s assessment of unaccompanied or trafficked children.’1

    This guidance is also relevant where all parties accept that the young person is a child but where the age of the child is not clear. Many young people will not be able to provide evidence as to their age, and some may not even know their own chronological age. In these circumstances an assessment will rarely produce significant information which will lead to a conclusive and certain decision, so the assessment can be unhelpful and unnecessary. Any assessment should be limited to the minimum necessary to ensure the young person is getting the appropriate services and educational support. In other circumstances the young person will be able to produce clear information about their age for example from documents or from reference to education. Lengthy assessments which ask young people difficult and distressing questions should be avoided unless you are clear that this is likely to be helpful and productive.

    However, there may be occasions when you do not feel that an age assessment is necessary but the Home Office are requesting an assessment before they will treat the young person as a child in the immigration process. In these circumstances you may need to negotiate with the Home Office to explain why the young person should be treated as a child without further assessment, or conduct an assessment sufficient to satisfy the Home Office without forcing the child to go through a repetitive and distressing process. Where this is necessary it may be possible to use information which you have already gathered, for example as part of your LAC Child in Need assessment, rather than conducting further interviews.

The Court of Appeal has handed down a wide-reaching judgment that directly concerns age assessment cases, but the principles enunciated apply to all litigation (private and public), writes Peter Oldham QC.

In LB Croydon v Y [2016] EWCA 398Y was an asylum seeker who was assessed by the London Borough of Croydon for social services needs. He was assessed as being over 18. He brought a judicial review age assessment challenge. The Upper Tribunal  gave directions listing the case for a 4 day hearing. Five months later, Croydon applied to the UT for an order that the claim should be struck out or stayed unless Y consented to and co-operated fully with (1) a dental examination (including a dental X-ray), (2) a psychiatric examination and (3) an age assessment by two Croydon social workers.

In making this application, Croydon relied on the Court of Appeal’s decision in Starr v National Coal Board [1977] 1 WLR 63. Starr was a personal injury claim. Mr. Starr accepted that in preparing its defence, the NCB needed to be advised by a consultant neurologist who had had the opportunity of examining him. But he objected to examination by the particular doctor chosen by the NCB without explaining why. He said that he was willing to be examined by any other consultant neurologist of similar qualification and experience. The NCB applied for a stay of all further proceedings until Mr. Starr submitted to an examination by its chosen doctor. The Court of Appeal upheld the stay that had been granted by the judge.

The UT judge refused Croydon’s application, saying that it was “most unfortunate” that Y’s representatives would not co-operate, but that it would be “too draconian” to stay or strike out the proceedings. The judge said that Starr did not apply, first, because (unlike Mr. Starr) Y had not conceded that Croydon’s assessments were necessary; and second, because this was public rather than private law litigation.

Overturning the UT judge’s decision, Lord Dyson MR gave the only reasoned judgment, Macur and Lindblom LLJ agreeing. On the first point, he said at [16] that it didn’t matter whether there was a concession or not: the question was whether the assessments were in fact “reasonably necessary for the proper conduct of Croydon’s defence”. The UT judge himself had decided that they were.

On the second point, Lord Dyson said at [17] that “there is no basis in principle for confining the Starr principles to private law litigation… The fundamental common law right of a defendant to defend itself in litigation to which Scarman LJ referred [in Starr] applies in any litigation”.

This is important since it makes it clear that the Starr principle is of general application, whether in courts or tribunals. So – as an example only – the first-tier tribunal should apply similar principles in special educational needs cases where a young person’s needs are in question and the authority or school wants to assess them.

Lord Dyson finished by deciding that, though a UT judge had the normal discretion as to case management issues, there was no reason in the current case for the judge to have decided that the steps which Croydon wanted Y to take could not be properly accommodated in the proceedings.

So the outcome was that the unless order sought by Croydon was made. abstracted from: localgovernmentlawyer.co.uk 

Albania COI Information 2016  (Please click to read full article)

Fear of persecution or serious harm by traffickers or other non-state actors because the person is a (potential) female victim of trafficking for sexual exploitation.

Albanian women who have been trafficked form a particular social group within the terms of the 1951 Refugee Convention. Whether they are at risk of persecution will depend upon their individual circumstances.

Albania has made great efforts to improve its response to trafficking in recent years, and there is, in general, a sufficient standard of protection available. However, this protection will nevertheless not be sufficient in every case, and each case must therefore be considered on an individual basis.

Much of Albanian society is governed by a strict code of honour, which means that trafficked women would have great difficulty in reintegrating into their home area and this would also affect their ability to relocate internally.

Re-trafficking does occur, and some women may be particularly vulnerable owing to their personal circumstances or the factors which led them to be trafficked in the first place.

Where a claim falls to be refused, it is likely to be certifiable under section 94 of the Nationality, Immigration and Asylum Act, but this will not be the case for everyone, and each case must be considered on its facts.

ADCS Age Assessment Guidance  (Please click to read full article)

The age assessment of unaccompanied children seeking asylum is a challenging process. This document is designed to address the gap there has been in national guidance on this topic by providing user-friendly practice guidance to social workers.

Those of us who have been involved in writing this guidance have direct experience in the age assessment process, either as social workers, social work managers, advocates, or solicitors for children and young people who are age assessed. We have seen the challenges faced by young people and the repercussions when things do not go well. We have had the pleasure of supporting children and young people through their journeys within the UK. We have also experienced the stress of working in pressurised local authority environments with limited resources.

We have tried to bring together these experiences to create guidance on best practice during the age assessment process, while also acknowledging the challenges social workers face in their day-to-day work. With that in mind, we have kept the guidance itself intentionally brief, and we have put more detailed information in the appendices.

 Section 94B of the Nationality, Immigration and Asylum Act 2002 (Please click to read full article)

his guidance explains to case owners how to consider certifying a human rights claim made in the context of deportation under section 94B of the Nationality, Immigration and Asylum Act 2002.

Section 17(3) of the Immigration Act 2014 amended the Nationality, Immigration and Asylum Act 2002 to introduce a discretionary certification power in relation to human rights claims made by those liable to deportation under sections 3(5)(a) and 3(6) of the Immigration Act 1971.

Section 94B of the Nationality, Immigration and Asylum Act 2002 allows a human rights claim to be certified where the appeals process has not yet begun or is not yet exhausted and the Secretary of State considers that removal pending the outcome of

an appeal would not breach section 6 of the Human Rights Act 1998. One ground upon which the Secretary of State may certify a claim under section 94B is that the person liable to deportation would not, before the appeal process is exhausted, face a real risk of serious irreversible harm if removed to the country of return.

The result of section 94B certification is that the right of appeal against the decision to refuse the human rights claim is non-suspensive, meaning it is not a barrier to removal. Any appeal can only be lodged and heard, or continued if the claim is certified after the appeal is lodged, while the person is outside the UK.

Deportation and the right to respect for private and family life under Article 8 HRA 

  • Well before the Human Rights Act (HRA) was passed, when deciding whether to deport criminals and over-stayers the Home Secretary had to weigh a large number of factors to decide if the public interest required their deportation.
  • The grounds on which a person who is not a British citizen is liable to deportation from the UK, under the Immigration Act 1971, include:
    • if the Secretary of State deems the deportation to be “conducive to the public good”1
    • where a court recommends deportation in the case of a person over the age of 17 who has been convicted of an offence punishable with imprisonment.Until recently, under the Immigration Rules,3 when deciding whether to deport someone on these grounds, the public interest had to be balanced against any compassionate circumstances of the case and the Secretary of State had to take into account factors including the person’s domestic circumstances, their strength of connections with the UK and their personal history.4 It was possible for the Secretary of State (or the tribunal, hearing an appeal against a decision to deport) to conclude that the compassionate circumstances of the case outweighed the public interest in deporting the individual.This was amended, following the controversy in 2006 over the Home Office releasing foreign prisoners without considering deportation, to become where a person is liable to deportation, “the presumption shall be that the public interest requires deportation” – unless it was a breach of the European Convention on Human Rights (ECHR) or Refugee Convention.

The key purpose of social work has been defined as: Second Edition  by: Steven Walker and Chris Beckett.

A profession which promotes social change, problem solving in human relationships and the empowerment and liberation of people to enhance well being. Utilising theories of human behaviour and social systems, social work intervenes at the points where people interact with their environments. Principles of human rights and social justice are fundamental to social work.

International Association of Schools of Social Work and the International Federation of Social Workers 2001, in: BASW, 2002

This powerful statement from a representative body of social workers from around the globe states quite clearly the twin elements that enshrine modern social work practice – the relationship between the external social world and the inner psychological experience of the individual that causes some citizens pain and suffering. In order to better understand how to help in these situations social workers need to develop the capacity to undertake assessments and interventions in a wide variety of settings with individuals, families, and groups. Such activity needs to be understood in the context of statutory duties, agency requirements, the needs and wishes of service users, and firmly underpinned by anti-racist and anti- discriminatory practice.

EU & Ors v SSHD 2013 (EWCA) (Please click to read the full court report )

  1. In its judgment in KA (Afghanistan) and others v Secretary of State for the Home Department [2012] EWCA Civ 1014, this Court, differently constituted, considered and decided the generic legal issues arising in the present cases, which are lead cases heard together so as to enable the Court to give guidance on the principles applicable in similar cases. The basic generic facts were summarised by Maurice Kay LJ, with whose judgment the other members of the Court agreed, as follows:The appellants are young men from Afghanistan who arrived in this country as unaccompanied minors, aged 15 or 16, and claimed asylum. In each case the Secretary of State refused the asylum application but, pursuant to her policy on unaccompanied minors, granted discretionary leave to remain (DLR) until the age of 171⁄2. Shortly before reaching that age, each appellant made an application for asylum or humanitarian protection which was refused. Each appealed unsuccessfully to the First-Tier Tribunal (FTT), which, except in the cases of SA and QA, determined the appeal before the appellant had attained the age of 18. Subsequent appeals to the Upper Tribunal (UT) were heard and dismissed after the appellants had attained their majority. In each case, the UT approached the assessment of risk on return on the basis of the facts as at the time of the hearing before it, including the fact of the appellant’s recently attained majority.I shall refer to the judgment of Maurice Kay LJ as “the Judgment”.
  2. It follows from the dismissal of their appeals to the Upper Tribunal that none of the Appellants established that at the date of the Upper Tribunal’s determination of his claim he was in need of international protection, and therefore entitled to asylum, or that any of his Convention rights would be infringed if he returned to Afghanistan. Nonetheless, the Appellants claim to be entitled to indefinite leave to remain by reason of the Secretary of State’s breach of her duty to endeavour to trace their respective families, imposed by Article 19.3 of the Reception Directive, transposed into our domestic law by regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005. Maurice Kay LJ referred to this duty as “the duty to endeavour to trace”, and so shall I. The Appellants contend that the Secretary of State’s breaches give rise to their right to benefit from what has been referred to as the corrective principle, or as the protective principle, established by the judgments of this Court in Rashid [2005] EWCA Civ 744, [2005] INLR 550. The Secretary of State disputes all of their claims.
  3. The appeal of KA has been allowed by consent, it being agreed that his Article 8 claim should be remitted to be heard by the Upper Tribunal. This is my judgment on the application of the principles established in KA to the facts of the remaining individual cases.