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Lives in the balance
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Last weekend I finally read the Refugee Council report Lives in the Balance: The quality of immigration legal advice given to separated children seeking asylum. It is a short, sharp, very depressing but absolutely essential read for any solicitors, OISC advisers or barristers representing separated children in the asylum process.
There are some stark findings. For example, it is estimated that there are currently fewer than 20 individual lawyers in London who are able to provide the desired standard of service to children and the figure is significantly lower in other areas of England. The report also reveals that standards of representation not only vary hugely between different firms but also within firms.
The report concludes:
The majority of legal representatives have limited knowledge of the specific issues that separated children face in the asylum determination procedure and their knowledge of child welfare legislation is extremely limited. Few are knowledgeable in both asylum and child welfare legislation. There are also gaps in current knowledge about the situation for children in countries from which separated children originate and specific issues such as female genital mutilation.
Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.
Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.
This research found that the quality and compatibility of interpreters and the roles they take on is also extremely varied. Sometimes languages are simply not matched accurately or dialects are not taken into consideration and thus separated children are effectively denied the opportunity to communicate with their legal representative. Some interpreters inappropriately advise their child clients, control the interview or take the lead in completing the Statement of Evidence Form.
This post is no substitute for reading the full report, especially as it is quite concise and to the point. However, I thought it was worth picking out some of the most worrying passages:
Advisers [referring to Refugee Council Children Panel Advisers] noted some concerns regarding the practice of ‘scouting for trade’. It appears that some legal firms use interpreters to trawl reception centres, screening units etc. to take clients, including separated children, to the offices of the particular representative. The scouts usually target young people from their own national and ethnic background and this can unduly inform the child’s decision relating to their choice of representative. (p6)
Advisers reported that some representatives explain the process in a way that is laced with jargon and without any apparent understanding that the child has not actually taken in the information given as it is too overwhelming. In addition, too few legal representatives recognise the importance of reminding and re- explaining the process to a child who may be overwhelmed by these complex issues. Children are often too frightened or unsure of themselves to tell their legal representative that they do not understand the system. Advisers are aware of children who, despite having been in the UK for two or three years, still feel confused and bewildered by the status determination system and are unclear about the different types of status available to decision makers. (p7)
When giving examples of poorer practice, an Adviser commented that sometimes statements could be over sentimentalised and/or inaccurate and lacking in substance. She said it was as if the legal representatives have no understanding of how difficult it is to obtain a positive decision in relation to an asylum application in the UK. These representatives appear not to appreciate the importance of the application and what it means to the child regarding their future or that in some instances the application can be a matter of life and death. Some representatives write insufficient detail and at least one Adviser commented that they had seen an application for asylum that consisted solely of one moderately sized paragraph. Advisers report that many legal representatives are not aware of relevant changes brought about through case law or recent court judgements and thus are not able to offer up to date advice.
Several Advisers were concerned that many legal representatives fill in applications by rote and pay scant attention to the individual circumstances of the case, giving little consideration to gathering case specific information. (p7-8)
Children’s Advisers outlined other examples of bad practice including real concerns about children’s experiences of the interview process. One Adviser gave an example of a child being interviewed in the corridor of a large solicitors’ firm and, in another example, the interview continued as the cleaner did the vacuuming around the office where the interview was being conducted.
An Adviser also provided an example where a child had been so upset by the events that they had had to describe (and re-live) that they were in tears and that this seemed to have no impact on the legal representative who continued with the interview as if nothing was untoward. Another Adviser referred to an interview where the legal representative was so brusque with the child that they made them cry (though the Adviser did add that the legal representative’s knowledge of relevant law was excellent).
It was reported that many interviews are rushed and some representatives seem to mistakenly think that because all separated children will get discretionary leave until they are 17.5 years old there is no need to make a strong and robust case.
The experience of many separated children was that their statement was compiled in only one visit to their legal representative, which the Refugee Council believes is insufficient: we recommend at least two appointments to enable a child to reflect upon the statements made in their application. (p8)
Advisers provided numerous and alarming examples where legal representatives had either not taken steps to provide an interpreter at all, or had not provided an interpreter who matched the child’s first language. Examples were provided where languages such as Dari, Farsi and Urdu were either mixed up or treated as being interchangeable. As a consequence the interviews were unable to provide detail and clarity on the specifics of the child’s case but took a more generalised approach based on the legal representative’s existing perception or knowledge of the current situation in the child’s country of origin.
In another example, an Adviser who shared the same language as the interpreter at a meeting between the child and their legal representative commented that around two thirds of what the interpreter relayed to the legal representative did not correspond to what the child was actually saying.
Advisers reported some instances where interpreters inputted into the process in ways that are beyond their appropriate role. Sometimes they appeared to want to help the child by suggesting what they should say as part of their statement. Whilst an interpreter’s motivation for this may be to help the child, this practice is wrong and in any event may weaken the child’s application by skirting over important information. It may also undermine the application by making it so similar to other applications that the Home Office treat it with a degree of scepticism. Additional concerns were raised about interpreters often taking control of the interviews, filtering questions, challenging responses or probing for more information whilst the legal representative passively allows this to happen. There were even reports of interpreters completing the child’s Statement of Evidence form. (p9)
…[Preparation and support at interviews with UKBA] This aspect of practice was also described as extremely varied. Advisers report that good legal representatives make the time and take great care to read through the final statement with the child before it is submitted. They provide an interpreter and in a minority of instances arrange to have the statement translated into the child’s first language so that they can read a hard copy. If the child has suggested amendments these will be incorporated into a redraft, and the legal representative will not submit the statement until the child has agreed that it is in order and accurately reflects their discussions.
This is in stark contrast to many other examples where young people had not had their statement read back to them and did not see a final copy of it. Once they had left the legal representative’s office they had no further input into the drafting of the statement. It was the experience of all Advisers that many legal representatives don’t attend the interview at all, choosing to send a clerk or interpreter, or who attend but offer no preparation and arrange to meet at the venue immediately before the interview is due to commence. Few representatives arrange for the child to meet their barrister, where appropriate, in advance of any hearings. The first meeting usually takes place immediately before the hearing will commence. (p10)
It is abundantly clear that the profession is collectively grossly failing separated children. Only last weekend there was more coverage of the disappearance of separated and trafficked children from local authority care. Undoubtedly local authorities and the UK Border Agency could do more to protect separated children, but it would seem that so could the childrens’ own lawyers, tragically.
Also on this subject I feel I should point out the excellent UNHCR report Trees Only Move In The Wind (large pdf). The thrust of the report can be discerned from the preface:
‘A tree does not move unless there is wind’ is an Afghan proverb which, roughly translated, means ‘there is no smoke without fire’, or ‘nothing happens without a reason’. The proverb provides an appropriate title for a report that tries to explain why significant numbers of Afghan children are making the difficult and dangerous journey to Europe, unaccompanied by their parents.
Essentially, the report suggests that the well documented particularly poor treatment of children in Afghanistan is a cause for the numbers of Afghan children arriving in Europe. It concludes:
The interviews conducted in the preparation of this study indicate that unaccompanied Afghan children who make the long trip to Europe are deeply and negatively affected by their experience. As well as the hardships and abuses of the journey, after arrival they are confronted with the prospect of forced return to Afghanistan, coupled with continuing pressure from family members to send remittances home, so that the debts incurred to pay for the journey can be paid off.
As stated by a recent study of asylum seeking children in the Netherlands, “their vulnerability … is increased by the problems they are likely to develop as a result of the lengthy, uncertain and deprived circumstances of their stay in the host country.”
Responsibility for this situation rests with a number of different actors. Afghanistan appears to have turned a blind eye to the role of smugglers in irregular migration, including children. Afghan parents, families and communities have allowed and encouraged the departure of their children on hazardous journeys, often to face greater dangers than those they might have faced at home, and all too often with the primary goal of sending back remittances.
European countries have complicated the situation by in most cases failing to establish best interest determination procedures and by waiting until Afghan children who are not in need of protection have “aged-out” (i.e. turned 18 years of age) before return is considered as an option.