Child Protection Guidance 2021

Part 4: Specific support needs and concerns 187 National Guidance for Child Protection in Scotland 2021 Version 1.0 September 2021 4.323 Children, variously categorised for reasons beyond their control, are children first, requiring care and protection from abuse and neglect. Whatever the immigration and asylum status of a child, immediate and continuing safety is the priority. As noted above, the UNCRC (Article 22) defines the right of any child seeking refugee status to receive appropriate protection and humanitarian assistance. The status of a child may change (e.g. from ‘unaccompanied’ to ‘accompanied’) without necessarily reducing risks. 4.324 Determination of immigration and asylum status is a reserved matter for the UK Government. However, child protection and care in Scotland is the responsibility of statutory services in Scotland. It is not appropriate for social workers to advise on immigration matters. Only those with the relevant qualification can advise if working in organisations regulated by OISC (Office of the Immigration Services Commissioner). 4.325 Refugee status: Decision-making on asylum is reserved to the Home Office. Social workers are not responsible for determining whether a child (in terms of the Refugee Convention 1951 Article 1A) “… has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”. Under current UK law, a person accepted as meeting the definition above will be granted Refugee Status and will receive Leave to Remain in the UK for a period of 5 years, after which they can apply for Indefinite Leave to Remain. Principles essential to protecting unaccompanied children: • unaccompanied children experience a confusing interaction of systems and rules. Article 3 of UNCRC sets out that: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Necessary actions in relation to protection and care must relate to a child’s wellbeing (Article 3.2). This should include consideration of the needs and views of the child. The ‘best interests’ principle is reflected in section 55 of the Borders, Citizenship and Immigration Act 2009, which places duties on the Secretary of State for the Home Department to ensure that immigration, asylum, nationality and customs functions are discharged having regard to the need to safeguard and promote the welfare of children in the UK (and this is as further reinforced in Home Office statutory guidance to section 55) . In Scotland, section 17 of the Children (Scotland) Act 1995 places duties on local authorities in relation to looked after children, including those placed because they have arrived unaccompanied • the European Convention on Human Rights (ECHR) potentially applies. It was incorporated into UK law by the Human Rights Act 1998 and is also reflected in the Scotland Act 1998. Relevant rights protected under the ECHR include: the right to life (Article 2); rights to respect for private, home and family life (Article 8); physical integrity and safety; freedom from torture, inhuman and degrading treatment (Article 3); protection from trafficking, slavery and forced labour (Article 4). It also includes rights to work, education and freedom of expression (Article 10), and the right not to be discriminated against (Article 14) • further guidance on children’s asylum claims (Home Office 2019) may be found at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/825735/children_s-asylum-claims-v3.0ext.pdf