Masud, a 15 year old Afghani boy, reached Calais, after a traumatic journey across Europe from Afghanistan via Greece. His sister and brother-in-law live in the UK and they want him to live with them in the UK. The Dublin III application requires him to make an application for asylum in France and to indicate in his application that he has relatives in the UK. As part of the process, France must ask the UK to ‘take charge’ of the application on the basis he has relatives in the UK – a complex and confusing process for someone who hardly speaks any French or English.
It is very difficult as a child to make an application for asylum in France, with limited access to legal advice. In any event, the authorities in France tend to put unaccompanied asylum-seeking children into care instead of dealing with their application for asylum. Masud’s application for asylum was refused and desperate to join his sister in the UK, he climbed on the back of a lorry heading to the UK. He died before he reached the UK. There are hundreds of children like Masud, many of whom had valid reunification claims under the Dublin III regulation pre-Brexit but had no access to legal advice or were unaware that there were safe and legal alternatives to jumping on the back of a lorry or into a dinghy. But following Brexit, safe and legal routes are even harder to access.
The Universal Declaration on Human Rights (UDHR) describes the family as the natural and fundamental group unit of society and is entitled to protection by society and the state (Article 16 (3)). The right to family reunification has been described as the ‘essential right’ for refugees and displaced people because it is so fundamental (Nicolson, 2018). Crucially, for children, it forms the basis of access to other rights, for example, access to education, health care, adequate accommodation, as well as freedom from violence, abuse and exploitation. A family environment is central to ensuring the child’s best interests (article 3(1) CRC) and can have a huge impact on a child’s well-being, protection and future prospects.
Separation from family is particularly traumatising for children, affecting their physical, emotional and mental development. A 2019 report by the Refugee Council, Save the Children and Amnesty international highlighted the importance of family to the children they interviewed and the ‘ordinary magic’ of family relationships and how they can be key to psychological recovery and act as a buffer between the child and the world (Refugee Council et al, ‘Without My Family: the impact of family separation on Child Refugees in the UK’, 2019).
For refugee children separated from their families, the right to family reunification is not only an essential right, but should be the basis of a safe and legal route to the UK. The lack of safe and legal routes either for children trying to join families in the UK or for parents wishing to reunite with children already in the UK, leaves the children or their families with the stark choice of living in a dangerous and precarious situation in their home country or embarking on a dangerous and life-threatening journey to the UK to join their loved ones who have reached safety.
Why are safe and legal routes harder to access post-Brexit? Despite its flaws and the dubious policy intention underlying it, the Dublin process did at the very least give children seeking to reunite with families a legal means of asserting the right to family reunification. However, the Dublin III regulation, along with many other EU laws ceased to apply in the UK on 31st December 2020, thus shutting off a vital and safe route for unaccompanied asylum-seeking children in Europe. The UK government has refused to extend the right to family reunification and has not reached an agreement with any of the 27 EU member states on the question of reuniting children with family in the UK.
The lack of a right to family reunification is a direct breach of the child’s right to family life and their right to family reunification under international law, in particular, articles 9, 10, 16 and 22 of the UNCRC. Instead of replacing the Dublin process with something similar, the government introduced, in December 2019, a watered down provision to review and consider the position of unaccompanied asylum-seeking children seeking reunion with family members here. The Lords, led by Lord Dubs, sought to keep and extend the Dublin style reunification provisions post-Brexit and defeated the government three times on the Bill introducing post-Brexit immigration provision. However, in the end, the most the government were prepared to concede was a promise to ‘review, or arrange for a review of, the ways in which protection claimants who are in a member State are able to enter the United Kingdom lawfully. The review … must, in particular (a) consider the position of unaccompanied children in member States who are protection claimants and are seeking to come to the United Kingdom to join relatives there, and (b) include a public consultation on that aspect of the review’ (s3 of the Immigration and Social Security Coordination (EU Withdrawal) Act 2020).
The Home Secretary, Priti Patel has until 11th February 2021 to set out the details of the review but no time limit has been set to complete the review. In the meantime, children who would have had a safe and legal route via the Dublin Regulation now must wait to see what rules the Home Secretary will come up with to replace the Dublin Regulation. Children and young people as desperate as Masud to reunite with relatives are more likely to risk a dangerous crossing to the UK. As Lord Dubs said in one of the debates, ‘[t]he only winners if we remove legal routes to safety for refugee children trying to reach family here are the criminals and the traffickers’ (Lord Dubs, 21 October 2020).
The other side of the family reunion coin are the unaccompanied asylum-seeking children who arrive in the UK with no family links but wish to be reunited with family members who are living in a dangerous situation in their country of origin or travelling through Europe to the UK. Whilst the UK recognises a right for an adult refugee who has been granted permission to remain in the UK to reunite with family members, a child refugee does not have the same right to reunite.Instead a child who is recognised as a refugee or receives temporary permission to remain (known as UASC leave) goes into care and either lives with a foster family or in semi-independent accommodation if over the age of 16. The government refuses to allow child refugees to reunite with family members based on the specious argument that people will put their children in danger by sending them ahead if the UK allowed children the right to reunite with their family.
There is no evidence to support this argument (see Refugee Council et al ‘Without My Family’ 2019). Such a stance by the UK government not only breaches its international obligation to ensure the best interests, care and protection of the child (article 3 CRC), to ensure no child is separated from their family against their will (article 9 UN CRC), the obligation to ensure family reunification (article 10 and article 22 CRC) and the right to family life (article 16 CRC), but also forces family members into the hands of smugglers and traffickers in a desperate attempt to reunite with their children in the UK. The UK has the most restrictive policies on child family reunion in Europe. Refusing family reunion goes against the child’s best interest, has a profound impact on the best outcomes for unaccompanied child refugees and puts at risk the child’s safety and long term well-being [Refugee Council et al ‘Without My Family’ 2019].
Comments