Unaccompanied Migrant Children and Young People and Victims of Trafficking and Modern Slavery

This chapter should be read in conjunction with the following government guidance: Care of Unaccompanied Migrant Children and Child Victims of Modern Slavery: Statutory Guidance for Local Authorities, November 2017 which sets out the steps local authorities should take to plan for the provision of support for Looked After Children who are unaccompanied asylum seeking children and young people (UASC), unaccompanied migrant children and young people or victims of modern slavery including trafficking. Elements of this guidance will also be relevant for the care of looked after UK nationals who may also be victims of modern slavery. It does not provide detailed guidance on steps that local authorities should take, in partnership with other agencies, to identify and protect victims of modern slavery, including trafficking, before they become looked after. This is described in practice guidance: Safeguarding Children who May have Been Trafficked. 

For information on where Unaccompanied Asylum Seeking young people should be placed, please refer to: National Transfer Scheme Protocol for Unaccompanied Asylum Seeking Children. 

The protocol aims to ensure that unaccompanied children and young people can access the services and support they need and ensure a more even distribution of unaccompanied children and young people. It is intended to ensure that any participating local authority does not face a disproportionate responsibility in accommodating and looking after unaccompanied children and young people, pursuant to its duties under parts 3, 4, and 5 of the Children Act 1989, simply by virtue of being the point of arrival of a disproportionate number of unaccompanied children and young people.

The cohort of unaccompanied migrant children and young people and victims of modern slavery includes a wide range of children and young people in a variety of circumstances that a local authority will need to be aware of in order to ensure that the young people receives appropriate legal advice and support. Some will have been trafficked or persecuted and may have witnessed or been subject to horrific acts of violence. Other migrant children and young people may have been sent in search of a better life, or may have been brought to the UK for private fostering and subsequently exploited or abandoned when the arrangement fails.

There are a wide range of status possibilities for migrant children and young people that the local authority will need to be aware of. In brief, the following categories regarding status are the most likely to be encountered. However this list is not exhaustive and the local authority should seek legal advice wherever there is uncertainty about a migrant child's or young person’s status.

Categories of unaccompanied young people include:

• Unaccompanied asylum seeking children - a person who:
  1. Is under 18 years of age when the asylum application is submitted;
  2. Is applying for asylum in their own right; and
  3. Is separated from both parents and is not being cared for by an adult who in law or by custom has responsibility to do so.
     Immigration Rules Part 11
     Some will not qualify for asylum but may require 'humanitarian protection' (where an individual is found not to be a refugee under the Refugee Convention but they are nevertheless at risk of serious harm on return to their country of origin Others may not qualify for any leave to remain in the UK. Their status will be determined by the Home Office);
• Unaccompanied migrant child or young people not seeking asylum: a child or young person who is not seeking asylum because their reasons for being here are not connected to seeking protection, or who may be undocumented, or is not seeking asylum because they have not been advised of the need to do so. The child or young person may be separated from both parents and is not being cared for by an adult who in law or by custom has responsibility to do so. 

From 1 January 2021, following the UK's exit from the EEA, the rules relating to 'family reunions' have narrowed, and only cover children or young people reuniting with parents who have refugee status or humanitarian protection.

Where it is established that the referral concerns a young unaccompanied child or young person migrant, regardless of the category, this will always satisfy the criteria for services to a Child in Need.

An unaccompanied child or young person will become looked after by the local authority after having been accommodated by the local authority under section 20(1) of the Children Act 1989 for 24 hours. Once accommodated, they will be subject to the appropriate regulations and the same provision as any other Looked After Child.

The local authority should have procedures in place to monitor their policies and performance and should record any modern slavery concerns on the Care Plan.

As part of the general duty to assess and meet the needs of an unaccompanied asylum seeking young person, the local authority should ensure that the child has access to a legal representative.

Unaccompanied young people are highly likely to require specialist support from a variety of organisations and agencies.

The Asylum Support webpage (Gov.uk) sets out the basis for housing, financial support, access to NHS healthcare and schools which may be available for an asylum seeker and their family while waiting to find out if they will be given asylum.

All professionals and the Service who are involved in the support of unaccompanied children and young people and victims of modern slavery should be able to recognise indicators of trafficking, slavery, servitude and forced or compulsory labour and should have an understanding of the particular issues likely to be faced by these children and young people.

This is a highly complex area of work, and professionals/staff will need to have available to them a solid understanding of the asylum process or colleagues or other professionals with such expertise.

The kinds of issues that may need to be negotiated include:

• An understanding of the Welfare Interview, Statement of Evidence Form;
• The purpose of the asylum case review;
• The importance of the substantive asylum interview;
• The different possible outcomes of a young person’s asylum claim and how that impacts on pathway planning.

Social workers should also have a broad understanding of the immigration system - for example, the immigration application process, different types of leave, making further leave to remain applications and the appeals process. Social workers should also have an understanding of the trafficking referral process and the wider child protection system around victims of modern slavery, including how and when to refer a child or young person to the National Referral Mechanism Digital Referral System: Report Modern Slavery.

One of the most crucial aspects of the social worker's role will be accessing specialist asylum and/or immigration legal advice and representation for all unaccompanied children and young people and victims of modern slavery. Legal advice can only be provided by a registered immigration advisor, who is either a regulated solicitor or registered with the Office of the Immigration Services Commissioner (OISC) to provide immigration advice to the relevant level. Ideally the solicitor should also have expertise in working with children and young people. This specialist advice will be required to ensure the child or young person can fully present their case for asylum or leave to remain.

Where a child or young person is undocumented this should be identified as soon as possible as the child or young person will need to access specialist immigration legal advice.

Legal Aid is available for asylum cases and looked after children and young people will generally be eligible.

Independent Reviewing Officers should be aware of the need to have regard to the young person’s need as an unaccompanied child or young person or victim of modern slavery, including trafficking, when planning and providing support. They should also have an awareness of the particular needs and issues young people may face as a result of being an unaccompanied minor or victim of modern slavery so that they can provide appropriate challenge at review.

The Service should ensure that staff are aware of appropriate steps to reduce the risk of trafficked returning to their traffickers.

The Care  Plan will take account of:

1. The immigration status of the young person;
2. The young person's ethnicity and religion;
3. Any safeguarding issues or factors that may indicate the young person is or has been trafficked or may be a victim of compulsory labour, servitude and slavery;
4. The fact that many unaccompanied and/or trafficked children and young people are at risk of going missing from the Service, often within the first 72 hours, whilst others may be at risk of repeated missing episodes due to ongoing exploitation. Photographs of the young person should be kept on file for use if they do go missing and be shared with the police in that instance. Photographs may include one of their full body length, one of their face and any others that depict distinguishing features;
5. Any family links that may be available to support the young person (ensuring that any search for family members does not jeopardise the safety of the young person).The young person should always be consulted with and informed if family tracing is being undertaken or commissioned on their behalf (see British Red Cross - Find my missing family); 
6. The young person's accommodation arrangements and needs;
7. The young person education needs and how these will be addressed through a Personal Education Plan;
8. The young person's local connection with the local authority area;
9. The young person's financial and other support;
10. The age assessment of the young person (where relevant) and any available information on their agent, their access into this country, the length of time they have been in this country and possible other connections; and
11. The young person’s health needs and any particular psychological or emotional impact of experiences as an unaccompanied or trafficked young person, and any consequent need for psychological or mental health support to help the young person deal with them.

In determining an unaccompanied young person's accommodation needs, the Assessment must have regard to their age and independent living skills, and consider the intensity of service required.

No assumptions should be made about the young person’s language skills. An appropriately qualified and vetted interpreter must be used to assist in all assessments.

Planning for the young person should include planning for a variety of possible outcomes regarding the child's immigration status - see Section 8, Asylum Process - Possible Outcomes. 

Age Assessment

Where the age of the young person is uncertain and there are reasons to believe they are a child the person will be presumed to be a child in order to receive immediate assistance, support and protection in accordance with section 51 Modern Slavery Act 2015. Assessments must be undertaken in accordance with standards established in case law and should only be carried out where there is reason to doubt that the individual is the age they claim. 

Young unaccompanied child and young people migrants should be provided with information about the services available to them from the local authority and other agencies. 

The young person will also be given assistance to register with a GP and dentist, and enrol in a local school or college. The health professionals and the school/educational establishment should be aware of the child's or young person’s status and senior managers such as the Virtual School Head should be informed of the school placement. There will be a need to set out clearly any particular implications of the child's or young person’s status for non-specialist professionals such as GPs and teachers, including any urgency of involvement - particularly with health practitioners. An interpreter should be booked to accompany the young person to appointments with the GP or school/ educational establishment where necessary.

Where there are safeguarding concerns relating to the care and welfare of any unaccompanied child or young person, including where modern slavery is suspected or has been identified, these should be investigated in line with the statutory provisions, Working Together to Safeguard Children statutory guidance and locally agreed protocols and processes. The opportunity to intervene to prevent any further exploitation might be very narrow, so the entry local authority should convene a strategy discussion as soon as possible and take any necessary immediate action to safeguard and promote the child's or young person’s welfare. This strategy discussion should involve the police, immigration officials and any other relevant agencies and plan rapid further action if concerns are substantiated.

For example, police-installed alarms, discussion with the child or young person about the use of mobile phones, etc.

Provision may need to be made for the child or young person to be in a safe place before any further assessment takes place and for the possibility that they may not be able to disclose full information about their circumstances immediately. The location of the child or young person should not be divulged to any enquirers until their identity and relationship with the child or young person have been established and the local authority is assured of their motives, if necessary, with the help of police and immigration officials.

All unaccompanied asylum-seeking children and young people who are eligible for a service will be entitled to financial assistance. The social worker should arrange for payment of the relevant amounts in accordance with the local authority's financial procedures which also includes travel to get to appointments at the Home Office.

The provision of a Service is dependent on the young person continuing to qualify for the Service.

Services to an unaccompanied young person migrant may be withdrawn, for example, where the young person choses to live with another adult and this is assessed as appropriate.

Planning transition to adulthood for unaccompanied young people is a particularly complex process that needs to address their developing care needs in the context of their immigration status.

Pathway planning to support an unaccompanied young person’s transition to adulthood must cover the areas that would be addressed within any care leaver's plan as well as any additional needs arising from their immigration status and the action required to resolve this.

Former unaccompanied young people who qualify as care leavers and who have been granted leave to remain, or who have an outstanding asylum or other human rights claim or appeal, are entitled to the same level of care and support from the local authority as any other care leaver.

The extent of any care leaver duties on local authorities to provide support to former unaccompanied young people who have turned 18, exhausted their appeal rights, established no lawful basis to remain in the UK and should return to their home country is subject to a Human Rights Assessment by the local authority. This is set out under the restrictions on local authority support for adults without immigration status.

For former unaccompanied young people whose long-term future is in the UK, transition planning will need to consider the challenges and issues facing any care leaver. Planning for children and young adults who have been granted refugee status or humanitarian protection should also consider when they may be required to make a further application for leave to remain.

Where an unaccompanied child or young person or victim of modern slavery qualifies for local authority care leaving support, a personal adviser must be appointed to support them.

Pathway Plans should always consider and reflect the implications for the young person if their asylum claim is refused without a grant of leave, if their application to extend their leave is refused or if their appeal against a refusal is dismissed. In such circumstances, the person will become unlawfully present in the UK and be expected to make plans for a return to their home country. A plan for a return to their home country may also need to be made at any other point, should the care leaver decide to leave the UK.

Planning may have to be based around short-term achievable goals whilst entitlement to remain in the UK is being determined. For the majority of unaccompanied children and young people who do not have permanent immigration status, transition planning should initially take a dual or triple planning perspective, which, over time should be refined as the young person's immigration status is resolved. Planning cannot pre-empt the outcome of any immigration decision and may be based on:

• A transitional plan during the period of uncertainty when the care leaver is in the UK without permanent immigration status;
• A longer-term perspective plan should the care leaver be granted long-term permission to stay in the UK (for example through the granting of Refugee Status); and
• A return to their country of origin at any appropriate point or at the end of the immigration consideration process, should that be necessary because the care leaver decides to leave the UK or is required to do so.

Assistance should be given in advance of their 18th birthday with the necessary applications for housing, Housing Benefit and any other relevant benefits. The social worker must ensure that the young person has accommodation to which to move on their 18th birthday.

Access to Public Funds

Financial support for care leavers who are former unaccompanied migrants should reflect their needs and their immigration status. Financial policies should highlight any entitlements and how their immigration status may affect these. Pathway Plans should address employment opportunities and funding arrangements for education and training, taking account of the young person's immigration status.

If a young person has no recourse to public funds, they will be unable to access a number of welfare benefits and social housing. Subject to the Human Rights Assessment by the local authority under Schedule 3 Nationality, Immigration and Asylum Act 2002 (as amended), the provision of accommodation may form part of the leaving care support provided to a young person who has no recourse to public funds.

Having 'no recourse to public funds' does not prevent a person from accessing other publicly funded services, but many of these will have eligibility criteria based on immigration status which will need to be considered. 

There are four main possible outcomes of the asylum process for an unaccompanied child or young person, which will determine what the long term solution might be:

• Granted refugee status i.e. granted asylum, with limited leave to remain for five years, after which time they can normally apply for settlement (i.e. indefinite leave to remain);
• Refused asylum but granted humanitarian protection, with limited leave to remain for five years, after which time they can normally apply for settlement (i.e. indefinite leave to remain). This is most commonly granted where the person is at risk of a form of 'ill treatment' in their country of origin but which does not meet the criteria of the Refugee Convention.
  As it is very likely that those granted refugee status or humanitarian protection will qualify for indefinite leave to remain, their care and pathway planning should primarily focus on their long-term future in the UK, in the same way as for any other care leaver;
• Refused asylum but granted Unaccompanied Asylum Seeking Child (UASC) Leave. This is normally for 30 months or until the age of 17½, whichever is the shorter period. This form of leave is granted to unaccompanied children or young people where they do not qualify for refugee status or humanitarian protection, but where the Home Office cannot return them to their home country because it is not satisfied that safe and adequate reception arrangements are in place in that country. There must be no reasonable grounds for regarding the applicant as a danger to the community or security of the United Kingdom; they must not have been convicted by a final judgment of a particularly serious crime; and they must not, at the date of their application, be the subject of a deportation order or a decision to make a deportation order;
• It is a form of temporary leave to remain and is not a route to settlement. It is important to note that this decision is a refusal of the child's or young person’s asylum claim and will attract a right of appeal. The child or young person should be assisted to obtain legal advice on appealing against such a refusal. Before the child's or young person’s UASC Leave expires, they can submit an application for further leave to remain and/or a fresh claim for asylum, which will be considered. It is essential that they are assisted to access legal advice and make any such further application or claim before their UASC Leave expires.
  In such cases, care and pathway planning should therefore consider the possibility that the child or young person may have to return to their home country once their UASC Leave expires or that they may become legally resident in the UK long-term (if a subsequent application or appeal is successful). Planning should also cover the possibility that they reach the age of 18 with an outstanding application or appeal and are entitled to remain in the UK until its outcome is known;
• Refused asylum and granted no leave to remain. In this case the unaccompanied child or young person is expected to return to their home country and their Care Plan should address the relevant actions and the support required. The Home Office will not return an unaccompanied child or young person to their home country unless it is satisfied that safe and adequate reception arrangements are in place in that country. Any appeal or further application should be submitted where appropriate by the child's or young person’s legal adviser.
  Although the above are the four main types of outcomes for an unaccompanied child or young person, there may be others. For example, a child or young person may be granted discretionary leave depending on whether they meet other criteria such as needing to stay in the UK to help police with their enquires after being conclusively identified as a victim of trafficking. Other examples include: leave as a stateless person; limited or discretionary leave for compassionate reasons; and limited leave on the basis of family or private life.

Statutory Guidance Modern Slavery: How to Identify and Support Victims

Revised Advice on Suitable Accommodation for Unaccompanied Asylum Seeking Children (April 2018)

Care of Unaccompanied Migrant Children and Child Victims of Modern Slavery: Statutory Guidance for Local Authorities, November 2017

Safeguarding Children who May Have Been Trafficked (Home Office, 2011) - non-statutory government good practice guidance.

Local Government Association - Council Support: Refugees, Asylum Seekers and Unaccompanied Children - resource for council staff, designed to answer questions about supporting refugees, asylum seekers and unaccompanied children.

Guidance on Processing Children's Asylum Claims - sets out the process which immigration officials follow in determining an asylum claim from a child and the possible outcomes for the child. 

UK Modern Slavery Helpline and Resource Centre - Unseen - Registered Charity

National Transfer Protocol for Unaccompanied Asylum Seeking Children - interim national transfer procedure and transfer flow chart for the safe transfer of UASC from one UK local authority to another.

How to Report Modern Slavery (Home Office, December 2016)

Cross-border child protection cases: the 1996 Hague Convention (DfE) - guidance for local authorities dealing with international child protection cases.

Refugee and Unaccompanied Asylum Seeking Children and Young People: Age Assessment and Children in Detention, (Royal College of Paediatrics and Child Health)

Refugee Council - Children's Panel - national remit to offer advice and support to unaccompanied children, and advise other professionals who are involved in their care. 

Modern Slavery Act 2015