Unaccompanied Children & Young People leaving Care

Local authorities have duties to accommodate and support children in need in their area, up to age 18, regardless of their immigration status. Local authorities also owe leaving care and aftercare duties to former looked after children.

This chapter sets out what a local authority may need to consider when it is responsible for supporting an unaccompanied or separated migrant child and/or young person eligible for aftercare.

Later chapters set out considerations for other groups, including asylum seekers and survivors of human trafficking. 

10.1 Introduction

Local authorities may be required to care for an unaccompanied or separated migrant child. There are many circumstances that may give rise to this situation occurring and local authority officers must be aware of how a child’s immigration status may impact on their entitlements, particularly where the child’s status is uncertain or unresolved. It will also be an essential element of a child’s care planning for local authorities to ensure that outstanding immigration issues are identified early and immigration advice is obtained in a timely manner.

Unaccompanied asylum seeking children (UASC) and separated migrant children under the age of 18 who have been trafficked to Scotland, are looked after and accommodated by local authorities as children in need under Section 25 of the Children (Scotland) Act 1995.

Unaccompanied migrant children may have arrived in Scotland of their own accord, arranged by their families (for example, from Ukraine) or been transferred into the careof the local authority under a formal refugee resettlement scheme, for example, the Vulnerable Children Resettlement Scheme, or from another local authority via the National Transfer Scheme, as set out in the Scottish Protocol.⁹⁸

The accommodation and support of UASC children whilst they are seeking asylum is partly met through direct payments by the Home Office to local authorities. This is not, however, the case for other migrant children in care, even if they have made an immigration application in order to regularise their immigration status.

In addition, some migrant children – for example, children who are living in Scotland as a dependant of a parent or caregiver who held leave to remain – may be taken into care for their own protection and are also accommodated under Section 25 of the Act.  Any migrant child taken into care will require early and urgent immigration advice, which is particularly important if they have leave to remain as a dependant on their parent’s status, or if it appears that they do not have any leave to remain. It may also be necessary to establish if the child has an entitlement to apply for British citizenship, for example, if they were born in the UK and have lived here for 10 years.

Finally, children of European Economic Area (EEA) nationals exercising EU free movement rights may also be taken into care for their own protection.  For these children, being taken into care can make it harder for them to prove that their parent (from whose activity their right to reside in the UK may derive), continues to exercise European treaty rights in Scotland.  Again, a child in this position requires early and urgent access to immigration advice on this issue and to also explore whether they may have an entitlement to British citizenship and the EU Settlement Scheme.

Section 25 of the Children (Scotland) Act 1995 requires local authorities to accommodate and support children in need in their area, up to age 18, regardless of their immigration status.

Difficulties arise, however, when children turn age 18, and have not yet been granted leave to remain.  This may occur, for example, if an asylum seeking child has been refused asylum but granted limited leave to remain until age 17.5, referred to as ‘UASC leave’.  Such a child will have made an immigration application for further leave to remain which could be pending or might have been refused.  This also occurs where a migrant child accommodated by the local authority has not yet made any application for leave to remain, and requires to do so.

In such cases, local authorities still owe leaving care and aftercare duties to formerly Looked After Children (LAC), regardless of immigration status, but these may be withdrawn earlier for a UASC who becomes appeal rights exhausted (ARE) following an unsuccessful asylum claim, and the statutory framework for meeting those duties is more complicated than for children who are British or who have settled status or have been granted leave to remain.

For more information, see:

• 2.1 Common immigration status types

10.2 Statutory Framework

As set out in earlier chapters, Section 25 of the Children (Scotland) Act 1995 establishes the duty of local authorities to accommodate ‘children in need’ in their local area.  Local authorities owe aftercare duties to children who were formerly accommodated by them, under Sections 29 and 30 of the Children (Scotland) Act 1995 and the Children and Young People (Scotland) Act 2014.  These are further set out in the Support and Assistance of Young People Leaving Care (Scotland) Regulations 2003 (as amended by the Support and Assistance of Young People Leaving Care (Scotland) Regulations 2015 (SSI 2015/62)) and associated Guidance^{. 99}

Local authorities have a legal duty to:

• Prepare young people for leaving care or ceasing to be looked after (including preparation of a Pathway Plan).
• Provide advice and assistance to young people who have ceased to be looked after on or after their 16th birthday.
• Provide aftercare support until the care leaver turns 19, and to assess any eligible needs for aftercare support until they turn 26 (or beyond in some cases). This may include accommodation, where this cannot be provided in any other way, for example, through the local authority housing department or social security benefits.

In addition, under the Continuing Care provisions of the Children and Young People (Scotland) Act 2014, young people who are aged 16 or older who are looked after in a foster, kinship or residential care placement are eligible to request to remain in their placement until age 21.  A local authority can only refuse such a request in limited circumstances and must prepare a welfare assessment explaining the reasons for such a decision.

10.3 Eligibility for Aftercare

The duties of local authorities to formerly looked after children arising under the Children (Scotland) Act 1995 and the Children and Young People (Scotland) Act 2014 apply, although the immigration status of a young person will affect entitlement to aftercare when they are 18 or older. 

However, challenges may arise where a formerly looked after child does not have leave to remain, and therefore cannot access mainstream accommodation and benefits, significantly increasing the direct costs to local authorities of meeting these obligations.

For some young people, when they turn 18 they may only be provided with aftercare under sections 29 and 30 of the Children (Scotland) Act 1995 if this is necessary to prevent a breach of their human rights, due to an exclusion set out in Schedule 3 of the Nationality, Immigration and Asylum Act 2002. When a young person is in an excluded group, either when they turn 18, or when they are older, and aftercare duties apply, the local authority would need to undertake a human rights assessment in order to establish whether such support and assistance can be provided, or whether the young person could return to their country of origin to avoid a situation of destitution in the UK.

For more information about the Schedule 3 Exclusion and how to determine which groups are subject to the exclusion, please see Section 7.1-7.2 of this Guidance.

For more information, see:

• 7 Social services’ support – exclusion
• 11 Assessments when the exclusion applies

10.4 Age Dispute and Age Assessment

There may be instances where the age of an asylum seeking child is disputed, which has implications for whether they are treated as a child or adult for immigration and local authority support purposes.

Local authorities should have regard to the Scottish Government’s Age Assessment Practice Guidance for Scotland: Good practice guidance to support social workers, their managers and others in undertaking and contributing to age assessments in Scotland (March 2018). Those undertaking assessments should be appropriately trained and supported. ¹⁰⁰

JustRight Scotland in collaboration with British Red Cross, and supported by COSLA’s Migration, Population and Diversity team have also produced guidance on the initial stage of age assessment, titled “Initial Presentation: What You Need to Know” (2023).¹⁰¹

When a young person’s age is disputed, questions may arise about the local authority’s responsibilities regarding the provision of support. The courts in England have established the following points with regards to the provision of accommodation to a looked after child under section 20 of the Children Act 1989 (equivalent to section 25) and leaving care duties (equivalent of aftercare), which may be useful for Scottish local authorities to be aware of:

• Whilst an age assessment is being carried out, the child must be treated as a child and looked after under section 20. ¹⁰²
  
• Leaving care duties cannot apply where a child has not been accommodated under section 20. If a child has been unlawfully refused section 20 accommodation because of an incorrect age assessment, which means that leaving care duties do not apply, the local authority could use its discretion to treat the young person as a former relevant child and provide leaving care support. ¹⁰³
• If a young person is age assessed as an adult, the local authority can: terminate support under section 20 immediately after the young person has been informed about this in person, refer the young person to the Home Office for asylum support, and accommodate for a short period to allow the transfer to take place (in this case support was provided for 24 hours). ¹⁰⁴

10.5 Considerations in Care Planning

There is no specific guidance in Scotland which sets out the criteria for care planning for separated migrant children and young people, and general principles apply, including the application of GIRFEC to the conduct of assessments, service planning and delivery.

However, there are some specific considerations, in working with this group of young people, that should be taken into account.  They include:

• The need to identify a child’s immigration status early and refer children with uncertain immigration status to specialist legal advice and support urgently. For example, all UASC and non-EEA trafficked children in Scotland are entitled to receive independent advocacy support of a guardian from the Scottish Guardianship Service, so a referral can be made promptly to that service.  Furthermore, immigration status can change over time, and therefore should also be kept under continuous review, in the child’s care plan.

• Taking account of barriers commonly faced by UASC, trafficked and migrant children, including due to cultural and linguistic differences, trauma (including separation trauma), possible fear of engagement with statutory authorities.

• Also considering challenges commonly faced by migrant children with uncertain immigration status, including fear and anxiety arising from an uncertain future, as well as potentially suffering discrimination, bullying or harassment at school, or in accessing services.

• Taking account of how linguistic barriers and experience of a different education system might affect access to education – such as the need for additional support with English and foundational study skills.

• For children with uncertain status, putting in place ‘triple pathway planning’ – meaning a future plan for the accommodation and support of a child, dependent on the outcome of a child’s asylum or immigration application (grant of leave, refusal of leave but not returned to home country, returned to home country).

The Department for Education has recently revised its statutory guidance for local authorities in England, which sets out some helpful guidelines for care planning. ¹⁰⁵

The Local Government Ombudsman in England has found two councils at fault for failing to properly identify and address the immigration issues of children in their care:

• Delaying and refusing to pay for legal advice for a child, who was a visa overstayer, resulted in the child failing to benefit from an Immigration Rule that allowed for children who had lived in the UK for seven years to be granted leave to remain when certain conditions were satisfied. Following failures by the local authority to obtain appropriate advice for her, she made an unsuccessful application by herself after she turned 18 when the rule no longer applied. She had obtained a university place but her immigration status meant that she was unable to undertake higher education. ¹⁰⁶
  

• Not identifying and helping looked after children to obtain British citizenship led to two siblings missing out on opportunities to travel abroad. ¹⁰⁷

These decisions make it clear that local authorities must have a clear strategy to: identify immigration status, address outstanding issues early on, not delay obtaining legal advice, record advice and ensure that a young person’s expectations reflect any implications or limitations of their immigration status.