UK Borders Bill

On 30 March the Home Office issued APU Notice 3/2007, entitled ““Amendment to Discretionary Leave Policy relating to Asylum Seeking Children””. This policy deals with children who do not qualify for asylum or humanitarian protection and who up to then were granted discretionary leave for three years, or until their 18th birthday, whichever was the shorter. The APU notice provided that from 1 April, discretionary leave was to be granted to the age of 17 and a half, if that was less than three years. This means that, because under Section 83 of the NIA Act 2002, only an asylum seeker who has been granted leave to enter for more than a year has a right of appeal, a child making an application at the age of 16 and a half or over will have been given a year or less and will have no right of appeal. The notice says that this provides more clarity to the young person about their future, meaning that they can look forward to removal at the age of 18. Somewhere around half of UASC will be 16 and a half by the time they get the initial decision on their asylum claim, and, as the noble Lord, Lord Judd, explained, their only recourse will be to submit an application for an extension of leave to remain as they approach the 17-and-a-half watershed, and then if that is refused, as inevitably it will be, to appeal against that decision. Since by the time the appeal is heard, generally at least a year and a half will have elapsed since the child’s original application, it will be much harder to assemble the evidence required, as the noble Lord said, and to prove that the circumstances at the time of the appeal, which the immigration judge has to consider, are the same as those which applied when the asylum claim was made. As the noble Lord also said, there is the additional disadvantage that since the child will almost certainly have turned 18 by the time the appeal is heard, the adult merits test will be applied to the application for legal aid funding, and since this is less favourable than the test for children, the young person is in greater danger of being denied representation altogether at the appeal. So much for the clarity about the child’s future.