Duncan Lewis Solicitors contributes to the UNICEF Monitoring Returns Project (15 January 2020)

Members of Duncan Lewis’ public law team’s contributions have been included in the UNICEF project involving upholding the best interests of refugee and migrant children in return and reintegration decisions and processes in the UK.

The study – carried out by UNICEF’s Geneva office and four European UNICEF National Committees in Germany, the Netherlands, Sweden, and the UK – consists of a comparative research review on the return on asylum-seeking/migrant children, including both unaccompanied and accompanied children, as well as voluntary and enforced returns. It looks into the UK’s approach, policies, and practices relating to children without the legal right to remain in the UK.

Public law director Toufique Hossain was interviewed as part of UNICEF’s research into the legal aspects and he and members of his team contributed two case studies to the project. Duncan Lewis Solicitors was one of only two law firms to have been consulted in the preparation of this report.

Part of the report looks at the issues surrounding age assessments and disputes, drawing attention to the statistics from The Refugee Council which reported that 88% of the cases referred to their age dispute project were assessed to be in fact children. Our case of NJ is included as a case study in this particular area.

NJ is a national of Afghanistan who arrived in the United Kingdom as a child of 14 years old. He claimed asylum, but he struggled to answer the questions asked of him, as a child with a lack of understanding of the process and in a new country where he did not speak the language. As a result of the answers he gave, his asylum claim was refused and he was found to be not credible and his nationality was also doubted. An alternate nationality was not suggested although his language is only commonly spoken in one other country.

He did not appeal and he is not sure why. He applied for further leave to remain when he turned 17 ½ but this was refused; as is common the Home Office said he could now return to Afghanistan as an 18 year old, relying on previous credibility findings. His case was refused and a judge refused to believe any of his account as he did not accept that he was an Afghan national. No alternate nationality was suggested. NJ was arrested trying to leave the country trying to reunite with his uncle and was detained. He was set removal directions to Afghanistan.

His removal was stopped at the last minute. In refusing his fresh claim subsequently the Home Office maintained that he was not an Afghan national. After two judicial review claims, his case eventually went to appeal when his case was refused based on the answers he had given as a child [although his nationality was now accepted]. He has lived in the UK now for over 10 years.

Duncan Lewis further advised UNICEF on the various potential appeal mechanisms available at different stages, noting that a child asylum seeker will often struggle with memory issues as a result of trauma and common psychiatric conditions including PTSD. The difficulties a child asylum-seeker may face in appealing a decision is further highlighted in the second case study provided by Duncan Lewis.

JM is a national of Afghanistan who arrived in the United Kingdom as a child of 14 years old. His asylum claim was refused by the Home Office as he was not found to be credible.

The Home Office made no reference to its own policy about child asylum claimants as to what expectations should be made of his evidence. JM was not aware of his right of appeal and does not recall being advised of it. He was granted Discretionary Leave in accordance with the policy. When his leave was about to expire he attempted to get help from his social worker to make an application to renew his leave to remain, but they were not able to help him to make the application or to find a solicitor. He eventually found a solicitor when he was an adult; who put in a fresh claim that was subsequently refused.

He was not given a right of appeal. He was later detained and attempts to make further representations were refused, as the Home Office relied upon its own credibility findings from when he was a child. His removal was stopped after a last-minute injunction. JM began to suffer from serious mental ill-health. He attempted suicide on a number of occasions in detention before his release. His judicial review decision is still pending.

UNICEF made a number of recommendations as an outcome of the report; including suggesting that the government make immigration cases involving the potential returns of all children, including children in families, eligible for legal aid; and that the government develops a strengthened Best Interests Assessment and Determination process that ensures that all of the necessary information about a child’s best interests is available to the decision-maker.

Public law director Toufique Hossain comments on the report;

“It has been wonderful to collaborate with UNICEF and we are pleased to have been able to contribute our expertise to the report. The work carried out by the public law department continues to make a significant difference to the lives of asylum-seekers and both accompanied and unaccompanied asylum-seeking children, and the recommendations made by UNICEF in the report are extremely encouraging.”

Read full report here.