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Children in care and children entitled to care leaving support: Entitlement to remain

Immigration and Social Security Co-ordination (EU Withdrawal) Bill – in a Public Bill Committee on 18th June 2020.

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‘(1) Any child who has their right of free movement removed by the provisions contained in this Act, and who are in the care of a local authority, or entitled to care leaving support, shall, by virtue of this provision, be deemed to have and be granted automatic Indefinite Leave to Remain within the United Kingdom under the EU Settlement Scheme.

(2) The Secretary of State must, for purposes of subsection (1), issue guidance to local authorities in England, Scotland, Wales and Norther Ireland setting out their duty to identify the children of EEA and Swiss nationals in their care or entitled to care leaving support.

(3) Before issuing guidance under this section the Secretary of State must consult—

(a) the relevant Scottish Minister;

(b) the relevant Welsh Minister; and

(c) the relevant Northern Ireland Minister

(4) The Secretary of State must make arrangements to ensure that personal data relating to nationality processed by local authorities for purposes of identification under subsection (1) is used solely for this purpose and no further immigration control purpose.

(5) Any child subject to subsection (1) who is identified and granted status after the deadline of EU Settlement Scheme (“the Scheme”) will be deemed to have had such status and all rights associated with the status from the time of the Scheme deadline.

(6) This section comes into force upon the commencement of this Act and remains in effect for 5 years after the deadline of the EU Settlement Scheme.

(7) For purposes of this section, “children in the care of the local authority” are defined as children receiving care under any of the following—

(a) section 20 of the Children Act 1989 (Provision of accommodation for children: general);

(b) section 31 of the Children Act 1989 (Care and Supervision);

(c) section 75 Social Services and Well-being (Wales) Act 2014 (General duty of local authority to secure sufficient accommodation for looked after children);

(d) section 25 of the Children (Scotland) Act 1995 (Provision of accommodation for children);

(e) Article 25 of the Children (Northern Ireland) Order 1995 (Interpretation); and

(f) Article 50 Children of the (Northern Ireland) Order 1995 (Care orders and supervision orders).

(8) For the purposes of this section, “children entitled to care leaving support” means a child receiving support under any of the following—

(a) paragraph 19B of Schedule 2 Children Act 1989 (Preparation for ceasing to be looked after);

(b) s.23A(2) Children Act 1989 (The responsible authority and relevant children);

(c) s.23C(1) Children Act 1989 (Continuing functions in respect of former relevant children);

(d) section 104 of the Social Services and Well-being (Wales) Act 2014 (Young people entitled to support under sections 105 to 115);

(e) sections 29-30 Children (Scotland) Act 1995 (Advice and assistance for young persons formerly looked after by local authorities) as amended by s.66 Children and Young People (Scotland) Act 2014 (Provision of aftercare to young people); and

(f) Article 35(2) Children (Northern Ireland) Order 1995 (Persons qualifying for advice and assistance.).’—

This new clause aims to ensure that the children of EEA and Swiss nationals who are in care, and those who are entitled to care leaving support, are granted automatic Indefinite Leave to Remain under the EU Settlement Scheme to ensure they do not become undocumented.

Brought up, read the First time, and Question proposed (this day), That the clause be read a Second time.

Question again proposed.

Photo of Graham Stringer Graham Stringer Labour, Blackley and Broughton

I remind the Committee that with this we are considering new clause 58—Settled status: children in care—

‘(1) Any child who has their right of free movement removed by the provisions contained in this Act has the right of settled status in the United Kingdom if that child is in care, is subject to the public law outline process via a declaratory system, undertaken on the child’s behalf by the Local Authority whose care they are under, or is entitled to care leaving support.

(2) For the purposes of this section, “a child in care” means a child who is under 18 and is—

(a) living with foster parents;

(b) living in a residential children’s home; or

(c) living in a residential setting like a school or secure unit.”

(3) For the purposes of this section, “public law outline process” is as set out under Family Court practice direction 12A of 2004.

(4) For the purposes of this section, “children entitled to care leaving support” means a child receiving support under any of the following—

(a) paragraph 19B of Schedule 2 Children Act 1989 (Preparation for ceasing to be looked after);

(b) s.23A(2) Children Act 1989 (The responsible authority and relevant children);

(c) s.23C(1) Children Act 1989 (Continuing functions in respect of former relevant children);

(d) section 104 of the Social Services and Well-being (Wales) Act 2014 (Young people entitled to support under sections 105 to 115);

(e) sections 29-30 Children (Scotland) Act 1995 (Advice and assistance for young persons formerly looked after by local authorities) as amended by s.66 Children and Young People (Scotland) Act 2014 (Provision of aftercare to young people); and

(f) Article 35(2) Children (Northern Ireland) Order 1995 (Persons qualifying for advice and assistance).’

This new clause would seek to provide automatic settled status for all looked after children in the care of local authorities and for children entitled to care leaving support, removing the requirement on the local authority to make an application to the EU Settlement Scheme on that child’s behalf.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

Thank you very much and welcome back, Mr Stringer; it is a pleasure to serve under your chairmanship once again. It is a pleasure to follow my hon. Friend the Member for Kingston upon Hull North, who made a powerful and persuasive contribution earlier to reinforce the merits of new clause 41.

I rise to speak in favour of new clause 58, about which we feel strongly and which is not dissimilar to new clause 41. As things stand, it is currently the responsibility of local authorities to make an application to the European Union settlement scheme for children under 18 who will be eligible to apply but who are currently in the care of the local authority. The Committee heard evidence on that from the Children’s Society, and I noted the Minister’s scepticism about aspects of that approach. I will seek, with genuine sincerity, to persuade him of the merits of taking an alternative approach.

Children are taken into care only if they have had the worst possible start in life. The cohort of children who would be affected by the new clause have the fateful combination of absent parents and precarious migration status. If we do any good with the Bill, it should be by giving those kids some stability on just one those fronts, in the hope that they can go on to a much brighter future.

In answer to a written parliamentary question, the Home Office said that it estimates—as we have already heard—that around 5,000 looked-after children and 4,000 care leavers in the UK would need to apply to the EU settlement scheme, but the exact numbers are unknown. Any further investigations undertaken by the Home Office to better understand those numbers have not been published, so, like my hon. Friend the Member for Kingston upon Hull North, I wonder whether the Minister is in a position to update the Committee on those estimates.

My hon. Friend referred to the incredibly informative survey work of the Children’s Society on this matter, in the absence of any further official data. It conducted its own research, sending freedom of information requests to every local authority or children’s services provider in the UK. That totalled 211 providers, 153 of which responded to the FOI requests by January this year. Those local authorities identified just 3,612 European economic area or Swiss looked-after children and care leavers, which is only 40% of Home Office estimates. Of those 3,612 children and young people, only 730 had so far applied to the EU settlement scheme. Of those, only 404 were in receipt of status—282 had settled status and 122 had pre-settled status—meaning that, of those identified by local authorities, only 20% have applied and only 11% have been granted status. Although the data represents 73% of local authorities or service providers, and as such is not fully representative, it offers a strong indication that there are serious and urgent concerns about identifying and settling the migration status of vulnerable children whose status and future will be significantly affected by the Bill.

The Minister might argue that as those figures relate to data gathered in January of this year, progress may since have been made. However, considering that we started to enter lockdown in mid-March, I suspect that not a great deal of progress has been made in the intervening weeks. The Minister might argue that because only 153 local authorities responded and 58 councils did not contribute data, the stats might actually be better than that sample suggests, but a number of those councils said they did not have that information and could not provide it to the Children’s Society. In fact, 32 local authorities said that they were unable to provide the data or that they did not hold the information in a reportable format.

Whether through the Government’s proposed approach, which means going through the full application, or through the streamlined alternative proposed in the new clause 58, for those children the local authority has responsibility for securing their status either way. If those very councils are saying that they do not know how many children in their care are eligible, we all ought to be incredibly concerned.

The Government have produced non-statutory guidance to local authorities on the EUSS regarding their roles and responsibilities in making or supporting applications for looked-after children and care leavers. However, in its oral evidence last week, the Children’s Society said that it had engaged with several councils that were still unaware of the existence of the guidance or their responsibilities as set out within it. Although the Children’s Society has attempted to address that by providing councillors with resources aimed at helping them in their accountability, overview and scrutiny roles, we clearly still have a number of barriers to overcome.

Even where local authorities are aware of their responsibilities, the young people in their care often have extremely complex cases that require considerable support and legal advice. Many require nationality advice, others have complex family arrangements, and most simply do not have the required documentation. Social workers are consequently spending months navigating advice and acquiring the necessary documents from European embassies. Social workers are by no means specialists in that area of work, and do we really want them to be acting as immigration caseworkers when we know the incredible case loads that they face?

All those factors were in play before they were compounded by the coronavirus. Local authorities are in the fight of their lives to keep communities going. The resources are, and will continue to be, spread incredibly thinly, diverting efforts to the frontline of fighting the virus for the foreseeable future. We have vulnerable children at home without day-to-day interaction with services. Although those children can still attend school we know that, disappointingly and worryingly, numbers are still low.

The challenges presented for children’s services are enormous. Identifying and assisting children in care to apply for an immigration status that is seemingly non-urgent has inevitably been de-prioritised. The most recent EUSS statistics show that applications fell by 46% in April this year, and anecdotal evidence from practitioners indicates that the number of applications and referrals of EU children in care or care leavers has been low, as we would expect during this time.

Even when applications have been made, the Children’s Society research found that in its sample only 404 EU national children in care or care leavers were in receipt of status through the EUSS, out of an estimated 9,000. In just over a nine-month period, only 11% of the vulnerable children identified through the survey, which is just 4% of the Home Office estimate of 9,000, were able to settle their status, compared with 79% of the overall official estimate of 3.4 million EEA citizens over the same nine-month period.

If those trends continue, thousands of European children either currently in the care system or who have recently left care will fall through the gaps, becoming undocumented and left without immigration status—rubbing salt into the wounds of what has already been a troubled start in life. The Home Office previously stated in answer to a written question that children who

“do not apply because their parent or guardian did not submit an application on their behalf can submit a late application. This includes children in care and care leavers.”

That is welcome, but both local and national Government must work to ensure that no child in the care of the state becomes undocumented, and we can do that with the new clause.

Having discussed some of the practicalities on the matter at length with my local director of children’s services, Julie Jenkins, for whose assistance I put my gratitude on the record, we propose that local authorities, on a declaratory basis, provide a list of names to the Home Office of the children and young people who would be eligible. In responding to reservations raised by the Minister at last week’s evidence session, the Home Office would then grant those young people settled status, as they would for a person who had made an application.

The Minister asked the Children’s Society how these young people prove their status. To answer his question: in the same way any other person with settled status would. We have been unable, sadly, to convince the Minister of the merits of physical proof, so they would have confirmation through an e-visa. On the issue of pre-settled and settled status, of the 404 children in the sample that we are talking about who are in receipt of status, 282 were granted settled status and 122 were granted pre-settled status.

Given everything that those kids have been through, why are we giving them pre-settled status? Let us just give them settled status. Let us not simply sign them up for yet more years of paperwork and burdens of proof; let us just take all that uncertainty off the table for them in this instance by giving them both settled status and proof of it.

Photo of Robert Goodwill Robert Goodwill Conservative, Scarborough and Whitby

On burden of proof, is it not the case that the Government have made it clear that alternative types of documentation might be available for children who cannot get access to birth certificates or other documents because they are estranged from their parents?

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

I would welcome that in the event that there is no alternative and that some of the more regular items of documentation are not available. In taking that route, however, we are still asking children to go away and gather a potentially enormous amount of information and documentation. When we know that such children are eligible, why can we not just deal with this issue in a streamlined way through local authorities and the Home Office?

I hope I have satisfied the Minister’s reservations about this approach. We are talking about a cohort of children and young people who are our responsibility; we the state are acting as their legal guardians. Let us do the best we can for them and at least give them confidence in their immigration status, in the hope that they can go on to overcome all their challenges and build happy lives here in the UK.

Photo of Kevin Foster Kevin Foster The Parliamentary Under-Secretary of State for the Home Department

It is a pleasure to serve under your chairmanship, Mr Stringer. I will speak to the two new clauses that have been moved. I appreciate the intentions behind them, and the concerns and genuine points that have been raised. That is why, from the outset, there have been arrangements in place to ensure that the EU settlement scheme is accessible to all, including looked-after children and care leavers. Prior to the full launch of the scheme in March 2019, agreements were reached and plans put in place with local authorities to ensure that relevant children and care leavers receive the support they need in securing their UK immigration status under the scheme.

Local authorities in Great Britain, and health and social care trusts in Northern Ireland, are responsible for making an application under the EU settlement scheme on behalf of an eligible looked-after child for whom they have parental responsibility by way of a court order. Their responsibilities to signpost the scheme and support applications in other cases have also been agreed. They concern children for whom there is no court order but where the local authority has a clear interest in supporting the best interests of the child—for example, children accommodated by the local authority, children in need and care leavers.

The Home Office has implemented a range of support services to ensure that local authorities and health and social care trusts can access help and advice when they need to. We have engaged extensively with relevant stakeholders, such as the Department for Education, the Local Government Association, the Ministry of Justice, the Association of Directors of Children’s Services and equivalents in the devolved Administrations, to understand and address the needs of looked-after children and care leavers, and to ensure they are all supported. Guidance has also been issued to all local authorities on their role and responsibilities for making or supporting applications under the EU settlement scheme for looked-after children and care leavers. The Home Office is holding regular teleconferences specifically for local authority staff who are responsible for making relevant applications, in order to support them and provide a direct point of contact for them within the Home Office.

A new burdens assessment has been conducted, and funding has been issued to local authorities that have responsibilities for carrying out specific duties in relation to looked-after children and care leavers, to ensure they are adequately funded to do such work. Along with the Minister for Children and Families in the Department for Education, I have written to lead council members to underline the importance of the work that their local authorities are undertaking to ensure that eligible looked-after children and care leavers make applications to the EU settlement scheme, and to highlight the support available. Home Office caseworkers are directly working with local authority staff who are responsible for making applications, as well as with organisations that specialise in working with children, such as the Children’s Society and Coram.

Additionally, the Home Office has provided £9 million of grant funding to 57 voluntary organisations across the UK in order to support vulnerable citizens in applying to the EU settlement scheme. They include several organisations specialising in support for vulnerable children and young people. We have now committed a further £8 million for such work, allowing charities and local authorities to bid for grant funding to provide support to vulnerable people and help ensure that no one is left behind. To reassure the Committee, we are continuing the existing arrangements until new arrangements and a new bidding process are completed.

Photo of Diana R. Johnson Diana R. Johnson Labour, Kingston upon Hull North

I am listening carefully to all the steps that the Home Office is taking, but is the Minister now in a position to publish the information about the number of children affected by needing to apply for the EU settlement scheme? I understand that his Department has already undertaken that work.

Photo of Kevin Foster Kevin Foster The Parliamentary Under-Secretary of State for the Home Department 2:15 pm, 18th June 2020

It is probably worth saying that, as of today, we cannot publish a final list of all who will be eligible under the EU settlement scheme because the transition period extends to 31 December this year. Therefore, people may yet arrive in the country who would be eligible to apply under the scheme. As part of the quarterly statistics publication—not the monthly one—we publish the number of applications from children. A large amount of work is going on, but it would be impossible today to have a definitive number of all who will finally be eligible, because eligibility, along with freedom-of-movement rights, runs up to 31 December.

Photo of Robert Goodwill Robert Goodwill Conservative, Scarborough and Whitby

Is it not also the case that there may be children claiming to be EEA citizens who may turn out to be, for example, from Albania, so publishing a figure based on what people claim would not be the true figure?

Photo of Kevin Foster Kevin Foster The Parliamentary Under-Secretary of State for the Home Department

I thank my right hon. Friend for that intervention. Yes, there is always that possibility. For example, one of the reasons why we will not look to accept EEA identity cards in the long term at the border and internally for certain right-to-work checks is that some EEA identity cards are very prone to abuse, unlike secure passports. There are always going to be such claims, but certainly there is strong work going on. However, as we touched on, the core reason is that we cannot produce today a final list of who will be eligible, but we are working closely with local councils. Of course, each day children come into care, sadly, so again, snapshots do not reflect the work that needs to be done.

Photo of Kate Green Kate Green Shadow Minister (Work and Pensions)

I do think that a running total—albeit one that would be changing from quarter to quarter—would give us a sense of the scale of the challenge, especially as we are now within six months of the end of the transition period and a year from the end of the extended period in which applications can be made. This point was raised, I think, a year ago in a debate in Westminster Hall when the Government first gave the undertaking to collect the data, and to do so through local authorities, which ought to give us a bit more confidence about its validity than if children or their families were simply providing it themselves. I say to the Minister that it would reassure Parliament if such information as is available were made public as soon as possible, although we understand that it is a bit of a moving feast.

Photo of Graham Stringer Graham Stringer Labour, Blackley and Broughton

I remind hon. Members that interventions should be brief and to the point.

Photo of Kevin Foster Kevin Foster The Parliamentary Under-Secretary of State for the Home Department

I have outlined the work that we are doing with local authorities to identify who is eligible. As the hon. Lady said, it is a moving feast, and we particularly want to make sure that those responsible for making these applications are aware of how to apply and who qualifies, and that they then proceed to do so.

I understand the concerns expressed by hon. Members about looked-after children and care leavers, and we must ensure that their corporate parents secure the best possible outcomes for them.

Photo of Dehenna Davison Dehenna Davison Conservative, Bishop Auckland

Does the Minister agree that the best way that we can support looked-after children is by ensuring that they can take full advantage of the EU settlement scheme through local authorities, rather than having a two-tier system?

Photo of Kevin Foster Kevin Foster The Parliamentary Under-Secretary of State for the Home Department

Absolutely. Once someone has their status under the European settlement scheme, they join another—why, we have had over 3 million decisions taken on granting status. That will be part of how our border system will operate in future. One of the lessons learned from the past is this—status was granted under an Act of Parliament, but then in several decades’ time it has to be explained to someone how their status was under a different approach from how status is granted to those who are in the same cohort, in terms of nationality and citizenship. That is not helpful to anyone. That is one of the lessons learned, of course, from the experience of the Windrush generation. That Act of Parliament was in 1971. The status was granted on 1 January 1973 and the issues then started to be encountered 30 years later, and not just since 2010— the first case mentioned on the front of Windrush lessons learned review is from 2009. Again, it is about how those issues are created.

A declaratory scheme as proposed in new clauses 41 and 58, under which those covered automatically acquire UK immigration status, would cause confusion and potential difficulties for these vulnerable young people in future years, with their having no solid evidence of their lawful status here. They will need evidence of their status when they come to seek employment, or access to benefits and services to which they are entitled. A declaratory system would leave them without that evidence, struggling to prove their rights and entitlements over decades to come.

I listened carefully to the comments made by the hon. Member for Kingston upon Hull North, in which she outlined the process local authorities could go through to list the children and send those lists to the Home Office. I thought, “If local authorities are going to go through all this, then the logical thing for them to do is make the applications that are required under the EU settlement scheme, and ensure the children they are listing have the status they need.” It is hard to see what the benefit to councils would be if we introduced a different process that did not produce a better outcome. If that is what we are going to ask people to do—arrange a working identifier—the next stage is to ask them to make quite a simple application to the European settlement scheme to get the status that child deserves.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control), Shadow SNP Spokesperson (Attorney General)

The Minister must accept that a declaratory system does not leave people without a means of proving their status. They have every incentive to apply to the settlement scheme to get the document they need to access the services the Minister has referred to, and would have the facility to do so.

Photo of Kevin Foster Kevin Foster The Parliamentary Under-Secretary of State for the Home Department

Again—here we go—this would mean that someone who had a status could not be distinguished from someone who did not have a status, and would then have to make an application. We have been clear that we cannot allow people to have a status without going through the process, but that we have some generous provisions in place. Similarly, physical documents that are decades old, that date from when someone is a child, are unlikely to be particularly convincing proof in many instances. That is why we need to move towards a digital system that is a permanent record, and if the children are being identified—as Opposition Members are suggesting—the next stage is to make that application, make it simple, and get their status secured. That means the children are then secure for the rest of their life, which is a better outcome.

Fundamentally, changing a system that is working well overall would have the exact opposite effect to that which the new clauses appear intended to achieve, leading to confusion and uncertainty. We have also made it clear that where a person eligible for status under the scheme has reasonable grounds for missing the deadline—for example, if their council did not apply to the EU settlement scheme on their behalf—they will be given a further opportunity to apply. We will ensure that individuals who have missed the deadline through no fault of their own can still obtain lawful status in the UK, which I suggest is a far better response to the concerns expressed by Opposition Members than the new clauses they are proposing. That is why the Government will not accept them.

Photo of Diana R. Johnson Diana R. Johnson Labour, Kingston upon Hull North

I am disappointed by the Minister’s response to new clause 41. It is also disappointing that the Minister is not able to update the Committee with some information, recognising that that information about numbers may be changing over time. This is a matter that will not go away, and rather than test the opinion of the Committee today, I may wish to return to it on Report. I therefore beg leave to withdraw the motion.

Clause, by leave, withdrawn.