Children’s rights legal digest – October 2020

This month we take a closer look at the needs of children and young people in care in connection with their immigration status or nationality. It is estimated that there are over 200,000 undocumented children in the UK – children living without ‘leave’ (permission) to remain, many of whom were born here – and over 3,000 undocumented children who are looked after by local authorities in England. Being born in the UK does not make you automatically British. However, many professionals working with looked after children may assume that, because they may have lived in the UK or been in care for a long time, they must have citizenship or be legally entitled to stay here. Lack of permanent immigration status or British nationality can have a profoundly negative impact on a child’s life and future in the UK. They may be unable to access secondary healthcare, further and higher education, employment or social security. In adolescence, many have to put their lives on hold and are unable to plan for their futures.

Re Y (Children in Care: Change of Nationality) [2020] EWCA Civ 1038

In this case the Court of Appeal examined the circumstances in which a local authority can make an application for British citizenship for a child in its care. It concluded that if, the birth parents object to the application and, at the same time, the consequence of granting British citizenship would be that the child may lose his/her national citizenship of origin, then approval of the High Court is necessary before such an application can be made.

The case concerned two children, aged 11 and 9, who were born in the UK to Indian nationals and were both themselves Indian nationals. Both parents had tried to obtain leave to remain in the UK but had been unsuccessful. While the father lives in the UK with uncertain status, the mother left the UK in 2015 and lives in Singapore. The children have been in care since 2015 and, having failed to find adoptive parents, the local authority applied for placement orders to be discharged (removed). At the same time, both parents applied for care orders to be discharged. During these proceedings it had transpired that the local authority was planning to apply for British citizenship for both children.

In December 2019, the family court approved the local authority’s updated care plans for the children of long-term foster care. However, the father was granted permission to appeal to look specifically at the issue of the local authority’s powers in relation to making an application for change of citizenship for the children.

The local authority argued that such applications were “akin to routine vaccination” and that as long as the local authority had consulted with the parents, it could act to take the necessary steps to make the application for British citizenship. The Court disagreed. Peter Jackson LJ observed that a change of citizenship is “a momentous step with profound and enduring consequences that requires the most careful consideration”. Where the parents oppose a proposed application for change of citizenship, and where such change may lead to a loss of their existing citizenship, the court held that Section 33 of the Children Act 1989 does not entitle the local authority to apply for British citizenship for children without first obtaining the approval of the High Court. The issue must be the subject of an application under the ‘inherent jurisdiction’* of the court.

For more on inherent jurisdiction, see our August 2020 legal digest here.

Read the full judgment here.

Children in care and immigration status/nationality
While it is extremely important that local authorities identify situations when children in their care are living in the UK without status (known as being ‘undocumented’), it is also vital that they obtain legal advice and have a full understanding of the consequences of any action taken.
Department for Education statutory guidance sets out that local authorities’ obligations to children with unresolved immigration issues include considering their need to have their immigration status issues resolved and need for legal services. This may involve helping the child make an application for leave to remain based on the length of time they have lived in the UK, or, if appropriate, an application for British citizenship. A failure to assist the child in care to obtain legal advice and/or representation where it is needed amounts to a breach of statutory duties. A clear example of this was provided in a recent Local Government Ombudsman decision that the Royal Borough of Greenwich had failed to assist a child in care to obtain representation and regularise her status. Greenwich was found to have failed in its duties, owing compensation of £5,000 and an apology. It was also told to improve practice and ensure staff were sufficiently trained. A similar finding was made against Dudley Metropolitan Borough Council when the local authority failed to obtain quality legal advice on citizenship for two children in care.
Legal aid is available for children in care with unresolved immigration/nationality issues. While it is vital that local authorities take action to ensure that the issues are addressed as soon as possible, no action should be taken without first securing independent quality legal advice.