EU Settlement Scheme: Looked-after Children and Care Leavers

Kate Green Excerpts

Tuesday 3rd September 2019 Westminster Hall

[Steve McCabe]

I thank my hon. Friend for those remarks. I hope that, in the course of this debate, it will be possible to demonstrate that this is not scaremongering, that these are real issues and that there are solutions, but that does require the Government to recognise the problems that my hon. Friend has raised and to agree to act on them.

As I was saying, it seems unlikely that social workers will have the time, expertise or legal knowledge to deal with these issues, particularly if they begin to encounter problems in the process. The Children’s Society, along with other charities, has repeatedly highlighted the problems that this group of children is facing and the challenges that exist in trying to process an EUSS application. There is no evidence that I am aware of that additional support will be made available to local authorities—the point that my hon. Friend the Member for Coventry South (Mr Cunningham) raises.

During the pilot phase, every application that Coram Children’s Legal Centre made on behalf of a child in care or a care leaver included detailed nationality advice—nationality advice that requires expert legal advice and understanding—and social workers had to be supported at each stage during the process. That is the evidence from the pilots.

[Kate Green (Stretford and Urmston) (Lab)]

I congratulate my hon. Friend on the case that he is making. The Greater Manchester Immigration Aid Unit has been working with directors of children’s services in Greater Manchester to try to offer the support to which my hon. Friend refers. Does he agree with me that we urgently need the Government to get the resolution currently before the House on extending legal aid to children in immigration cases through the House and on to the statute book? If the Government did that, social workers would be absolutely clear that legal aid was available for these cases and that they would not have to rely just on the chances of getting exceptional case funding.

[Steve McCabe]

My understanding is that that is an outstanding Government promise; as my hon. Friend says, there is a resolution to that effect. If there are any plans to curtail the time that we will spend here in the coming days, one good use of the time here would be in dealing with this simple issue. That would certainly raise the prospects of our being able to deal with the whole issue in a much more satisfactory manner, and I would certainly support it.

The current guidance states that local authorities can make applications on behalf of children where they have full parental responsibility, but, as I mentioned earlier, for care leavers or children in care under a section 20 order they are instructed simply to raise awareness or to signpost those young people to the scheme. Children in care under section 20 orders include children with disabilities, the children of prisoners, children involved in the criminal justice system and victims of child trafficking. It seems unrealistic to think that those children will be able to gather the correct documentation, make the application for themselves and challenge any incorrect decision the Home Office might arrive at.

Looked-after children are starkly over-represented in the criminal justice system, as I am sure the Minister knows. Around half of children currently in custody in England and Wales have been in care at some point. The Government have provided no clarity as to how these children will be treated when they apply for the scheme and, if they are offending, whether that will be used against them, as in the adult scheme. I raise that point because in this country we normally take the view that juvenile criminal behaviour should be treated differently from adult criminal behaviour.

Many looked-after children and care leavers may be eligible for British citizenship, but the social worker will need to know the law in order to recognise that. Local authorities would have to pay the application fee, which is currently £1,012 per child. That is a significant disincentive for cash-strapped local authorities. As I said earlier, we are working on estimates because local authorities do not record EU nationals who are in their care or classed as children in need, but the Government estimate that around 5,000 EU children are currently in care, and there are perhaps a further 4,000 care leavers across the UK, who need to be registered. At the present time, it is virtually impossible to estimate the number of children in need, which is a broader group.

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[Tim Loughton]

I appreciate that very important point. It has been the subject of some of the discussions we have had with previous Home Secretaries. We have discussed not only what happens if there is a no-deal scenario but what happens if there is an agreement. If there is an agreement, the terms that should apply to children seeking to be reunited with families need to be at least as generous as those under the Dublin scheme, because under our domestic terms a range of family members are not included. We need to overhaul our own laws and increase the flexibility with which we can take on unaccompanied children who seek to be united with relatives who are often distant relatives but are nevertheless the only remaining members of their family, such has been the danger and the terror that they have had to escape from.

So, whatever happens in the next few weeks and months and goodness knows when, this issue needs to be looked at separately. As I say, I have had very positive discussions. When I and my right hon. Friend the Secretary of State for Digital, Culture, Media and Sport have approached the Home Secretary before, having been on trips to Greece with UNICEF to see some of the children who are applying for these schemes, we have had a very positive response and I very much hope that that will continue under new Ministers within the Home Office. But the hon. Member for Walthamstow (Stella Creasy) makes a very pertinent point. Therefore, whatever happens, we need clarification under Dublin.

However, there is a problem closer to home, which is what we are discussing today, as a direct result of Brexit. It has not received the level of attention that many other aspects of the immigration scheme have, and it is a cause for concern. I have an interest in it, both as a former children’s Minister, and as the chair of the all-party parliamentary group for children and vice-chair of the all-party parliamentary group for looked-after children and care leavers, which the hon. Member for Birmingham, Selly Oak very admirably chairs. These sorts of issues come up with the children who we see.

As we know, the EU settlement registration scheme aims to establish the immigration status of EU citizens legally residing in the UK after we have left the EU. It grants settled or pre-settled status, with rights to work, travel, use public services, access public benefits and so on. As the hon. Gentleman said, it is the largest registration system ever planned in the UK. It has been a huge challenge and not without its problems, certainly early on. It needs to progress smoothly, to avoid another Windrush scandal, which has been mentioned. It has been subject to a lot of scrutiny and some criticism by the Home Affairs Committee, which I sit on. We produced a report in May on the scheme. In fact, we will take evidence again tomorrow—with the hon. Member for Stretford and Urmston (Kate Green) there, too—on how our preparedness for Brexit has hopefully improved since we last heard from witnesses on this subject.

Over a million people have now registered under that scheme; I gather that nobody has been refused. I myself have had just one complaint from constituents about the way it works, so things are better, if still not ideal.

[Kate Green]

I agree with the hon. Gentleman that many people have been able to access the scheme successfully and it has been very helpful that the Home Office has begun to publish the data on the number of people going through the scheme. However, does he agree that we need one particular piece of data to be disentangled, which is in relation to 16 to 18-year-olds going through the scheme? Currently, they are being included in the number of adults going through the scheme, but nowhere in our law is a 16 or 17-year-old treated as an adult.

[Tim Loughton]

The hon. Lady is absolutely right; in fact, she has pre-empted what I will now not bother to say later. As she says, 16 and 17-year-olds have been assimilated with adults, but children in this country are those under the age of 18. So, it is absolutely essential that that definition is applied to all children, not least those most vulnerable of children. And as a result of schemes such as Staying Put, what is effectively the definition of the children who come within that remit will expand to include those aged up to 21, 23 and even 25 in the case of some, including those children with disabilities. Therefore, those figures that she referred to absolutely need to be disassembled, because these children are probably the largest group within the cohort that we are talking about today.

The Children’s Society has been very vociferous on the issue that we are considering today and it has done a lot of work on it; I pay tribute to that work, and the Children’s Society has also helped us to prepare for this debate. It has made a calculation—it is not about children in care, but it allows us to put things in context—that between the end of August 2018 and the end of June this year, 107,110 children under the age of 16 applied to the EU settlement scheme. So far, 86% of those children have had a conclusion to their application; 65% have got settled status and 35% have got pre-settled status; 180 applications were withdrawn, or were void or invalid; and no applications have been refused. However, that still leaves 14,510 children, who are presumably waiting for their applications to be concluded. So there is also a group of children coming through the normal scheme who are slightly in limbo.

Again, the whole point about the 16 and 17-year-olds is that we do not know how that group is broken down. So I repeat the call from the Children’s Society to see the ages of applicants broken down further, so that under-18s—as well as 18 to 25-year-olds, who are another potentially vulnerable subset of children not of “child age” but who are equally important and vulnerable—can be properly identified and, as a result, supported.

The Children’s Society also says:

“Additionally, only 12% of the applications to the EU Settlement Scheme have come from children aged under 16. But analysis from the Migration Observatory suggests that there were 700,000 EU children under 18 in the UK in 2018, meaning hundreds of thousands of children may still need to apply for settled status or secure British citizenship. If they do not, they risk being left without a lawful status in the UK which means being unable to access education, employment, healthcare, housing and other vital services.”

Therefore, this is still a big problem for those children in the care system and for those who, though not looked after, are unaccounted for in the applications that have come through so far. There is still an awful lot of work to do.

That group of up to about 5,000 looked-after children who will need to apply to the EU settlement scheme does not include care leavers—some of whom may be subject to “staying put” arrangements and other special support measures—or children who are classified as in need and who receive support services and vital help from local authority children’s services departments. That figure represents something like 6% of all children in care in this country—five years ago it was 3%, so there has been a rapid increase. Those individuals are an important part of the looked-after children estate and potentially some of the most problematic children to identify, support and register.

As the hon. Member for Birmingham, Selly Oak mentioned, it is a sad fact of life that children in the care system are still much too disproportionately represented in the youth justice system. Many are victims of people traffickers, many have English as a second language, and many rely on being able to access benefits and other support that we take for granted. Our children’s services departments are hugely overstretched, and the all-party parliamentary group for children has recently produced a number of reports on the issue.

I welcome hugely the announcement of an additional £14 billion for schools. I hope it will be confirmed tomorrow in the comprehensive spending review, although goodness knows what will happen tomorrow. It will be very well received, particularly in my part of the world of Sussex and other shire counties, but I want to ensure that children’s social care services are not excluded. Those services are within the remit of the Department for Education and have faced huge funding challenges, yet it is the local authority departments that provide them that will be responsible for looking out for these children, for identifying and registering them, and for the legal expertise for cases that are not as straightforward as those involving other children. For example, if children are here with a French or German family, they will be able to make the application on their behalf.

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[Kate Green (Stretford and Urmston) (Lab)]

I am grateful for the chance to contribute, Mr Bone. It is a pleasure to speak under your chairmanship. I welcome the Minister to her post and congratulate my hon. Friend the Member for Birmingham, Selly Oak (Steve McCabe) on securing this debate.

I share the concerns that have been expressed today. It is estimated that in the north-west there are around 700 looked-after children of European economic area or Swiss nationality, but we do not know the numbers for sure. It is vital that we gather the data, so I was pleased to see in a written answer to Lord Russell on 9 July that the Home Office will survey local authorities to benchmark the current uptake of the scheme and to baseline cohorts of EEA citizen looked-after children and care leavers, and that the survey will take place at set intervals throughout the lifetime of the European Union settled status scheme.

Is the Minister able to update us about progress on gathering the survey data? Will she confirm that it will include children in need—a vulnerable group not encompassed by the provisions of the settled status scheme and special help from local authorities, as my hon. Friend pointed out? Will she also confirm that there will be an opportunity to disentangle data from the statistics in relation to 16 and 17-year-olds?

As others have said, we are talking about the most vulnerable children in the country who may have suffered appalling abuse or neglect. As we have also heard, securing status for those children is absolutely vital for them to thrive and maximise their potential in adult life. I share the concerns expressed about local authorities only being required to ensure that applications are made for children under section 31 care orders. I invite the Minister to explain why other children looked after in the ambit of section 20 —or those, for example, who are privately fostered or are care leavers—are not also included within the obligation on local authorities: they, too, are very vulnerable young people and children.

The Government intended the application process for settled status to be straightforward and simple. However, as we have heard, that will not be the case for many looked-after children because of the difficulties they might have in accessing documentation to support their applications, because their carers might not understand the need for them to apply or because local authorities might be overstretched and not able to give them the support that they need to do so.

As I have said, many such children will be reliant on legal aid to support them in making a sufficiently strong application. Social workers do not have the expertise, training, capacity, or indeed the legal right to give advice on immigration matters; they would be in breach of immigration law if they tried to. So it is vital that the Government, having finally tabled, after a year, the order to bring immigration cases for looked-after children within the ambit of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, get the order put through in good time before 31 October. I hope the Minister will be able to commit today that the Government will ensure that that happens.

I want to mention a couple of other points: first, the issue of children’s best interests. I recognise that the Children Act 2004 requires that local authorities discharge their functions having regard to the welfare of children, and I also recognise that section 55 of the Borders, Citizenship and Immigration Act 2009 requires immigration authorities to take into account the need to safeguard and promote the welfare of children in the UK. However, the lack of systems and processes to embed children’s best interests into the settled status decision-making process means that those issues might not be properly addressed. What guarantees can the Minister give us that the EU settled status scheme will operate so that children’s best interests are always paramount? Will it be made explicit in the settled status scheme, and will she undertake to carry out a child rights impact assessment of the operation of the scheme?

I, too, want to highlight particular concerns in relation to EEA and Swiss national looked-after children in the criminal justice system. As we have heard, looked-after children are disproportionately represented in the criminal justice system. Half of children in custody have been in care. As with local authorities, there is a dearth of data on the nationality and status of children in the criminal justice system. Will the Government put in place arrangements to collect centrally nationality data for children in youth offending services and in detention as a matter of urgency, so that where applications need to be expedited for those children, that can take place?

As my hon. Friend the Member for Birmingham, Selly Oak has said, our criminal justice system recognises the difference between childhood and adult offending, for example, in sentencing or in the time that it takes for a conviction to become spent. However, that difference is not clearly recognised in the EU settled status scheme. Any child or young person over the age of criminal responsibility—in other words, over the age of 10— will be subject to criminality checks. Where checks reveal “serious or persistent” offending, a referral will be made to immigration enforcement for a case-by-case determination as to whether an applicant should be refused status on the basis of “suitability”. I recognise that the Government have stated that those under 18 will not be required to answer questions relating to suitability and that children under 18 will be deported only on imperative grounds of public security, but there is no single definition of what kinds of offences are likely to be captured in that exception. It would be useful if Ministers could guarantee to set out the higher threshold that will apply in guidance, and also confirm that both the non-disclosure requirements and the higher threshold applying to under-18s will continue after 31 October, even in the event of no deal.

The settled status scheme also fails to differentiate between adults and children in relation to the continuous residence criteria: the general caseworker guidance makes no distinction between adults and children in terms of resetting the clock on residence following a period of imprisonment or detention. Will the Government look at amending the scheme to ensure that a custodial sentence imposed on a child does not impact on the calculation of their continuous residence for the purpose of making an application for settled status?

Finally, may I invite the Government to publish specific guidance on children and young people applying to the settled status scheme from within the secure estate or the wider criminal justice scheme? Will the Government consider granting settled status to all children irrespective of their criminal history? I echo the calls made in this Chamber this morning and invite the Government to supply settled status to all looked-after children and children in care. We risk those children being left in a limbo that will affect them all through their adult lives if we do not make their status absolutely clear and safe now. As we have heard, those children have already demonstrated their right to our protection. We cannot afford to let them down as a result of a decision to leave the European Union, which was in no way any of their making.

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[Seema Kennedy]

May I please finish my point? For some of the children we are talking about, the local authority is the parent. A second group might be the parents of section 20 children, and another group includes children in need. The problem is that some children still have their parents, who, perhaps at a later point, might come back in order to make the application for them. We are talking about three distinct groups of children. It is important that we recognise that, although some children might temporarily be under a section 20 order, they might return to their parents afterwards.

[Kate Green]

Will the Minister give way?

[Seema Kennedy]

I must finish this point. I have asked officials to look at the hon. Lady’s point about the local authority giving the evidence, and I will write to her in more detail.

[Kate Green]

That was the point I was going to make.

[Seema Kennedy]

It is important to note that not all the children we are talking about have local authorities that are in loco parentis.

On the role of local authorities, a new burdens assessment has been made. It will take into account the important work of identifying the cohort of children and their parents. We have asked local authorities to return figures by the end of August—I think the hon. Lady referred to that—and we are currently co-ordinating those returns, which came in only a few days ago. That is how we are supporting local authorities.

We have given £9 million to 57 voluntary and community sector organisations across the country, to help us reach an estimated 200,000 vulnerable or at-risk EU citizens and help them apply. Of course, it is not only children who might be in a vulnerable cohort; the Home Office is very aware of that. Additional support is available to people who do not have the appropriate access, skills or confidence to apply online. There are more than 300 assisted digital locations across the UK, and there is an opportunity for a paper application in some circumstances.