Immigration Law

 

Trafficking will often involve a breach of immigration law - either illegal entry or overstaying. Section 25(1) of the Immigration Act 1971 created the offence of facilitating illegal entry into the UK; this was amended by s.143 of the NIA 2002 which gives a broader definition and increases the maximum penalty to 14 years.[1]

Regulations for applications for asylum are contained in the Immigration and Asylum Act 1999 and the Nationality, Immigration and Asylum Act 2002.  Should an asylum seeker be refused asylum there is a right of appeal. In addition to the right to apply for asylum, it may be possible for immigrants to be granted ’humanitarian protection’ (previously known as Exceptional Leave to Remain) and to remain in the country for a limited period. This particularly applies to unaccompanied children who are unable or unwilling to return home. The NIA 2002 contains the requirement that asylum seekers demonstrate to NASS that they claimed asylum at the earliest opportunity, unless they are children, parents of children or have special needs. 

Children seeking asylum

·         An unaccompanied asylum seeking child is a person who, at the time of making the asylum application:

1.       Is, or (if there is no proof) appears to be, under eighteen

2.       Is applying for asylum in his or her own right

3.       Has no adult relative or guardian to turn to in this country.

Details on how the application should be made is on the Immigration and Nationality Directorate (IND) website.  

·         All unaccompanied children who apply for asylum in the UK and who are not already in the care of Social Services are referred to the responsible Social Services Department as soon as they have made their claim.  

·         In cases where there is a ‘responsible’ adult, and IND staff are concerned about the child’s relationship with this adult, social services will also be involved in this case.  

·         Whilst unaccompanied asylum seeking children have no automatic right to remain, they will not be removed from the UK if IND do not consider there to be adequate arrangements for them if they were to be returned to their country of origin. In this case, children will be given exceptional leave to remain either for 4 years or until they reach the age of 18, and will only be returned to their country of origin if appropriate arrangements can be made for their safe return. 

·         Local authorities should inform the police, who may in turn inform IND where appropriate, as soon as any unaccompanied child who is supported goes missing. 

N.B It has recently been announced that exceptional leave to remain is to be abolished.  A new status of ‘humanitarian protection’ will be introduced.  There will also be some situations where a person may qualify for discretionary leave.  Please consult the IND website for the latest information : http://www.ind.homeoffice.gov.uk/