How will the Children and Social Work Act 2017 affect migrant children?

15 March 2018

Care leavers with NRPF may receive advice from age 21 to 25 but not accommodation​

Provisions of the Children and Social Work Act 2017, which enhance local authority duties that apply to looked after children and care leavers, come into force in England on 1 April 2018. Following a consultation, the government has published statutory guidance which sets out how these new duties should be implemented. We consider how these changes are likely to affect the support given to looked after migrant children and care leavers, including unaccompanied asylum seeking children (UASCs). 

Corporate parenting principles (section 1)
The Act and statutory guidance clarify the role of local authorities as corporate parent to looked after children and young people by setting out seven principles that must be regarded when exercising any function. These principles apply to all departments as well as district councils in two-tier authorities. 

The statutory guidance states at Annex 2 (14)

'Under the Care Leavers Regulations a care leaver's needs in relation to their status as a victim of trafficking or an unaccompanied asylum seeking child must be considered when the local authority is preparing an assessment of needs and to require that, where a child is a victim of trafficking or an unaccompanied asylum
seeking child the local authority must consider whether their related needs are being met when reviewing the child's pathway plan.'

The corporate parenting guidance must be read in conjunction with the statutory guidance specific to migrant children: Care of unaccompanied migrant children and child victims of modern slavery

Local authorities will be responsible for securing the best outcomes for children in care and young people leaving care as part of their duty as corporate parent, and, in applying the principles, social services must ensure that the needs of migrant children are fully met by:

  • undertaking meaningful care planning for children and care leavers who have no, or a temporary type of, immigration permission; and 
  • supporting the child or young person to achieve a sustainable form of immigration status, ensuring they are given the best chance to succeed in immigration, asylum or British citizenship applications through accessing immigration advice.
Publication of local offer to care leavers (section 2)
Local authorities must consult with care leavers and publish a local offer, setting out what services will be offered to former looked after children to help them to prepare for adulthood and independent living.

It will be important for local authorities to ensure they obtain input from migrant care leavers when preparing the offer, and to provide information specific to this group, for example, what assistance will be given to access immigration advice, and information about which young people may only be able to receive leaving care services in order to prevent a breach of their human rights - see below. ​

Providing personal adviser support up to age 25 for all care leavers (section 3)
Currently, leaving care services end when a young person reaches age 21, unless the young person is undertaking a course of education or training, in which case they may receive services up until age 25. Leaving care services include the provision of accommodation and financial support where a young person's immigration status means they have no recourse to public funds (NRPF) and cannot access welfare benefits or social housing. The Act does not remove or amend these duties. 

The Act includes a new duty to allocate a personal adviser to provide support to all young people who want this from age 21 to 25. The statutory guidance states, at paragraph 33, that the personal adviser duty does not include the provision of accommodation and financial support. ​

The local authority must offer assistance from a personal adviser to the young person as soon as they turn 21, and at least once every 12 months until they reach 25. The statutory guidance contains information about the extent to which local authorities are expected to attempt to make contact with young people who have already left leaving care services but are not yet 25.

Extended personal adviser support will be added to the list of leaving care services that can only be provided to certain young people, when they are age 18 or older, if the provision of such support or assistance is necessary to prevent a breach of their human rights or rights under European treaties. This exclusion is set out in Schedule 3 of the Nationality, Immigration and Asylum Act 2002, and applies to young people with no current immigration permission, most appeal rights exhausted (ARE) former UASCs, and EEA nationals. When such a young person has a legal or practical barrier preventing them from leaving the UK, for example, a pending human rights application, then personal adviser support will need to be provided if the young person requests this, but will not include funding accommodation or financial assistance.

Commentary 
Although the Act brings in many positive changes that mean looked after migrant children and care leavers should be better supported, this is already a complex area of service provision, and fulfilling​ these new duties will be challenging without further clarity on implementing the personal adviser provision where a young person has NRPF and requires accommodation. 

Additionally, every time a young person who is in an excluded group approaches the local authority for personal adviser support, social services will need to conduct a human rights assessment or review a previous assessment to establish whether the exclusion continues to apply. 

We will work with partners to raise these issues with government and request that further clarity is provided. Local authorities are encouraged​ to evidence the costs of providing support to care leavers by using NRPF Connect and to provide staff with training to ensure that migrant children are given the best chance of succeeding in immigration and asylum claims in order to avoid becoming NRPF when they reach adulthood.

Related information 
         - Care of unaccompanied migrant children and child victims of modern slavery
         - Applying corporate parenting principles to looked-after children and care leavers 
         - Local offer guidance
         - Extending personal adviser support to all care leavers to age 25
         - Extending personal adviser support to all care leavers to age 25 new burdens assessment

Note that the provisions of the Immigration Act 2016, which make significant changes to local authority support for care leavers with no current immigration permission, are not currently in force and the government​ has not provided any indication of when they may be implemented. Local authorities must continue to apply the law as it currently stands and, from 1 April 2018, the changes that are set out here.

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