Local Authorities’ duties to help “looked after” children obtain immigration advice

February 5th, 2016

On the recommendation of the Local Government Ombudsman, the Royal Borough of Greenwich will pay £5,000 compensation to a woman, “Ms Y”, whose local authority failed to help her seek leave to remain in the UK when she was a “looked after child”. The case underlines the necessity for local authorities to be familiar with the immigration rules affecting those for whom they act as “corporate parents” and to be willing to grapple with the legal and practical problems which may affect children’s transition out of care and into adulthood.

Ms Y came to the UK from Nigeria in 2006 at the age of 10 with her mother. Their visitor visas expired in 2007. In early 2010 her mother returned to Nigeria without her. From September 2010, aged 15, she was given a foster placement by the council under section 20 of the Children Act 1989, and a panel recommended that her social worker should clarify her immigration status. When the council was planning Ms Y’s leaving care arrangements in 2011, the same question was recognised to be a priority. There were difficulties in finding a solicitor to advise on Legal Aid. Finally a solicitor advised in January 2013 and quoted fees for Ms Y to make the necessary application to the Home Office. The council was unwilling to pay the fees. Ms Y sought her own legal representation, but the application was not made until after she had turned 18 in May 2013. The Home Office decided that as she was over 18, she could not apply for leave to remain based on residence in the UK for 7 years.

Ms Y made a complaint to the council which was considered under Stage 1 of the statutory procedure. Having responded, pointing out e.g. that it had acted on legal advice and that Ms Y could have asked friends or relatives to help her, it decided that there was no merit in pursuing the complaint to Stage 2.

The LGO decided that these events established a failure by the council to safeguard and promote the welfare of Ms Y as a looked after child. It was guilty of delay in establishing her immigration status and, from November 2011 to January 2013, in obtaining suitable legal advice for her. It had also formed an incorrect view of the rules by which Ms Y’s immigration application would be decided. When the council decided that it would not pay for a solicitor to make the application and that Ms Y would need to look for a Legal Aid solicitor, it left her very little time to do this and to make the necessary application before she turned 18.

In the LGO’s view, the council had failed to provide consistent support and advice. Having assessed her as needing suitable legal advice, it had failed to pay to have that need met, failing also to strike a proper balance the cost against the impact of the lack of advice. These matters at least caused Ms Y distress and uncertainty, although it was not possible to say whether her immigration application would have succeeded if it had been made earlier.

Accordingly the LGO recommended compensation and an apology. Also of practical significance are the LGO’s further recommendations, also accepted by the council, that it should:

  1. provide specialist advice and guidance to its social work staff on the requirements of the immigration rules applicable to children seeking asylum or leave to remain, and on the council’s relevant legal duties;
  2. devise an action plan to ensure it gives full and proper consideration to its duties to all its ‘looked after children’ who may be in need of legal advice, to meet its obligations as their corporate parent to safeguard and promote their welfare, and especially to those with complex immigration problems who might need timely legal advice on their immigration status;
  3. clearly record the reasons for any refusal to arrange legal advice, and ensure officers record both the questions raised and any legal advice given;

There was also a finding of a failure properly to progress the statutory complaints procedure under the Children Act 1989.

Charles Bourne QC

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