This document provides more information to MPs and Peers about Clause 37 of the Withdrawal Agreement Bill, which concerns a future reciprocal agreement between the UK and EU for the family reunification of unaccompanied asylum-seeking children.
The Government’s strong record in supporting vulnerable children.
The Government has a proud record on supporting the most vulnerable children. The UK has granted protection to over 41,000 children since the start of 2010. In 2018, the UK received over 3,000 asylum applications from unaccompanied children – 15% of all asylum claims from unaccompanied children across the EU – making the UK the third-highest intake country in Europe. Intake in the year ending September 2019 rose to over 3,500.
Over 5,000 unaccompanied children are being cared for by local authorities in England alone – a 146% increase from 2014.
In addition, over the last five years we have granted over 27,000 family reunion visas for individuals joining family members granted refugee status in the UK under the refugee family reunion Immigration Rules.
The UK also continues to resettle vulnerable refugee children direct from conflict regions. Over 18,000 refugees have been resettled in the UK from conflict regions under the Vulnerable Persons Resettlement Scheme (VPRS), and over 1,700 children and families resettled under the Vulnerable Children’s Resettlement Scheme (VCRS), with around half of both those cohorts being children. This year the Government will launch a new global resettlement scheme, with the aim to resettle around 5,000 refugees in its first year of operation, again with around half expected to be children.
In parallel the UK continues to offer support aimed at alleviating the pressures on the Greek islands and to lead to sustainable improvements within the Greek migration system, including contributing £500,000 from the Conflict, Security and Stability Fund towards urgent humanitarian support in the Greek island reception centres.
Finally, the UK has some of the world’s leading children protection laws, in the form of the Children’s Act. The UK will also continue to uphold its obligations under the European Convention of Human Rights (EHCR) and the Refugee Convention – obligations this Government takes extremely seriously.
Q&A on Clause 37 of the Withdrawal Agreement Bill
Are you taking away the right to family reunion from the most vulnerable children?
No. The Government remains resolutely committed to the principle of family reunion, as well as to supporting the most vulnerable children affected by the migration crisis.
As a result of leaving the EU, the UK will cease to participate in EU instruments at the end of the implementation period, including the Dublin Regulation. This means that the ability of unaccompanied children under Dublin to reunite with family will end, unless a replacement agreement is negotiated. The Government is committed to seeking such an agreement so that we can ensure these children can continue to reunite with family.
Section 17 of the European Union (Withdrawal) Act as it originally stood (annexed to this document) did not guarantee the family reunion rights of unaccompanied children. It simply required the Government to seek to negotiate an agreement – section 17 did not guarantee the rights of these children and it is not possible to do so without an agreement with the EU.
Similarly, Clause 37 of the Withdrawal Agreement Bill does not remove any such rights. The Government has repeatedly stated its commitment to seek an agreement. Moreover, Clause 37 goes above and beyond the previous obligation in section 17 in that it provides a statutory guarantee that Parliament will be updated on the Government’s policy regarding family reunion for unaccompanied children within two months of the Bill's passage, giving Parliament the opportunity to provide scrutiny.
What does Clause 37 of the Withdrawal Agreement Bill do?
Clause 37 does not repeal section 17. It replaces the statutory obligation upon the Government to “seek to negotiate” an agreement with the EU for the family reunion of unaccompanied asylum-seeking children, which currently take place under the Dublin Regulation, with an obligation upon the Government to make a statement to Parliament on its policy with regards to such an agreement. The statement must be made within two months of the Bill receiving Royal Assent.
The Government remains absolutely committed to seeking an agreement with the EU which will enable unaccompanied asylum-seeking children in an EU Member State to be reunited with specified family members in the UK, where it is in the child’s best interests, and for children in the UK to be reunited with family members in an EU Member State in equivalent circumstances.
It should be stressed that Clause 37 and section 17 only relate to provisions with the EU for the family reunion for unaccompanied asylum-seeking children. Our other policies relating to family reunion and wider asylum issues are not affected by the Withdrawal Agreement Bill.
Why is the Government removing the statutory obligation to ‘seek to negotiate’ from primary legislation?
The Government has been clear that we remain committed to seeking an agreement with the EU on family reunion for unaccompanied asylum-seeking children, and the Home Secretary has already written to the European Commission to commence negotiations.
We are not removing section 17 from the 2018 Act. Rather, the Government has gone above and beyond its original obligation in section 17 and are now providing a statutory guarantee that Parliament will be updated on Government policy in this area. This guarantee, which was not part of the original section 17, gives Parliament an opportunity to provide scrutiny on the Government's policy and progress.
The Government is restoring the traditional division between Government and Parliament. A statutory commitment to seek to negotiate something does not form part of the traditional relationship between Government and Parliament. Negotiating objectives should not be laid in primary legislation, and Government’s hands should not be bound by Parliament in negotiations.
Primary legislation is not necessary to deliver this commitment. As we have already written to the Commission to commence negotiations, it is inappropriate to maintain the statutory obligation in legislation now. The legal basis for the family reunion provisions agreed with the EU will be the international agreement itself.
However, it is important to note that any future agreement with the EU is a matter for negotiations, and not within the gift of the UK Government alone. Furthermore, implementing an agreement will require the close cooperation of the EU and EU Member States. Primary legislation will not guarantee this.
The Withdrawal Agreement Bill is fundamentally about delivering EU exit.
What does the Government mean when it says it wants to negotiate with ‘maximum flexibility’?
Being able to negotiate with maximum flexibility means having the freedom to pursue an agreement with the EU which is no less than the agreement we would have pursued under the original section 17 obligation. We remain committed to reaching such an agreement.
Does the government intend to use unaccompanied children as a bargaining chip?
The Government does not see vulnerable children as bargaining chips. We have the best interests of children in mind and that is why we remain committed to seeking this agreement. Our proud record of support to vulnerable and unaccompanied children is evidence of this.
What agreement is the Government seeking?
The Government remains committed to seeking an agreement with the EU as defined in section 17 – namely a reciprocal agreement for the family reunion for unaccompanied asylum-seeking children where it is in their best interests, after we leave the EU.
The Government is absolutely committed to ensuring the best interests of these children are served. That is why it is important that this agreement should be reciprocal, as outlined above. This is so that, where and only where it is deemed to be in the child’s best interests, a child in the UK can also be reunited with a family member in an EU Member State.
The Government is seeking an EU-wide agreement, to enable vulnerable unaccompanied children in all Member States to reunite with family in the UK if it is in their best interests. However, any future agreement with the EU is a matter for negotiations, and not within the gift of the UK Government alone.
How does the Government intend to negotiate this agreement?
The UK is committed to maintaining a close relationship with the EU on asylum and migration, and any agreement negotiated under section 17 of the EU Withdrawal Act 2018 will form an important part of this relationship.
The Home Secretary has already written to the European Commission on 22nd October to commence negotiations with the EU on a future agreement for the family reunion of unaccompanied asylum-seeking children, once the UK is no longer bound by the Dublin Regulation.
However, any future agreement with the EU is a matter for negotiations, and not within the gift of the UK Government alone.
Who are specified family members?
Section 17 defines those family members with whom unaccompanied children would be eligible to reunite with under a future agreement (subject to EU agreement) as:
- a spouse or civil partner of the child or any person with whom the child has a durable relationship similar to marriage or civil partnership; or
- a parent, grandparent, uncle, aunt, brother or sister of the child.
Section 17 specifies that, in order for the child to be eligible to join their family member, that family member should either be a lawful resident of the country they are in, or have made an application for international protection there which has not yet been decided.
The Government is not amending this part of section 17 in Clause 37.
Will you be resolving family reunion issues in the forthcoming Immigration Bill?
The Government has been clear that we remain committed to seeking an agreement with the EU for the family reunion of unaccompanied asylum-seeking children, and has already written to the European Commission to commence negotiations. As we have already explained, primary legislation is not necessary to deliver this commitment.
Will you need Immigration Rules to deliver an agreement with the EU?
This will depend on the detail of the final agreement we reach with the EU. If Immigration Rules are needed to implement the agreement, they will be laid before Parliament in the usual manner at an appropriate time and Parliament will have an opportunity to scrutinise those rules in the normal way.
Do Members of Parliament have any influence over the Immigration Rules?
Immigration Rules changes are subject to parliamentary scrutiny. If Parliamentarians have any concerns, the Rules can be disapproved by a resolution in either House of Parliament, as set out in section 3(2) of the Immigration Act 1971. If this occurs a revised Statement of Changes needs to be laid before Parliament within 40 days.
When will the UK cease reuniting children with family members under the Dublin Regulation?
The UK will continue to participate in the Dublin Regulation during the implementation period. This means that unaccompanied children seeking protection in an EU Member State will continue to be able to reunite with eligible family members in the UK until the end of December 2020.
Additionally, the Immigration, Nationality and Borders (EU Exit) Regulations 2019 makes provision that we will continue to process Dublin family reunion referrals which entered the system before the date of the end of the implementation period, after this date.
Won’t there be a gap in provision for new child family reunion cases at the end of December 2020?
Our intention is to reach an agreement with the EU as quickly as practicable and before the end of December 2020.
What other policies does the UK operate allowing for the family reunion of refugees and asylum seekers?
Separate to the Dublin Regulation, the UK has existing and extensive legal provisions to guarantee family reunion.
Individuals with immediate family members in the UK who have been granted refugee status here will still be able to apply to join those family members under the refugee family reunion Immigration Rules. This route is not impacted by EU Exit in any way.
The UK continues to resettle refugees direct from conflict regions under the VPRS and VCRS. With the completion of the schemes this year, the Government will launch a new global resettlement scheme aiming to resettle around 5,000 refugees from conflict regions around the world in its first year of operation, again with around half expected to be children.
The Government remains fully committed to relocating the specified number of 480 unaccompanied children to the UK under section 67 of the Immigration Act 2016 (‘the Dubs Amendment’) as soon as possible, and we are making good progress in doing so. Unlike Dublin, this is not a family reunion route.
None of these routes are affected by Clause 37 Withdrawal Agreement Bill, nor by our exit from the EU or the end of the implementation period.
Does the arrival of unaccompanied children via family reunion impact on Local Authorities in the UK?
The UK receives a large number of asylum applications from spontaneous arrivals of unaccompanied children – these are children who have entered the UK clandestinely. Local authorities are placed under significant burdens to support these children in care.
For those unaccompanied children who arrive via the current Dublin family reunion mechanism local authorities do play a role in those cases e.g. by carrying out a family assessment on the UK based family the child is seeking to join for safeguarding purposes.
Additional burdens are placed on local authorities in supporting unaccompanied children who join family members under Dublin who are subsequently unable to care for them, or whose family relationship subsequently breaks down following transfer under Dublin. Some children will therefore end up in care following a Dublin family reunion transfer although we recognise that this is not the case for all transfers.
How many children are currently reunited under the Dublin family reunion provisions?
In 2018, the UK reunited 159 children with family members in the UK under the Dublin Regulation. Between 2016 and 2018, 426 UASC were reunited with family in the UK under Dublin.
Won’t more young people take the illegal route on the back to lorries to come to the UK if we allow Clause 37? Aren’t you just encouraging traffickers?
The Government is absolutely clear that it remains committed to seeking an agreement with the EU which will enable unaccompanied asylum-seeking children in an EU Member State to be reunited with specified family members in the UK, where it is in the child’s best interests, and for children in the UK to be reunited with family members in the EU in equivalent circumstances.
Therefore, children who can access this safe and legal family reunion route negotiated with the EU would not need to enter the UK clandestinely.
Our intention is to reach this agreement as quickly as practicable and before the end of December 2020. Meanwhile, the UK will continue to participate in the Dublin Regulation during the implementation period, continuing to provide a safe and legal family reunion route throughout 2020.
Clause 37 therefore continues to protect, rather than shut down, legal routes to the UK for unaccompanied asylum-seeking children.
UK agencies (including Immigration Enforcement and the National Crime Agency), working with international partners continue to focus significant effort on disrupting the criminal groups and prosecuting people who seek to exploit migrants by facilitating attempted illegal border crossing.
Why should we trust Ministers individual commitments on this given they may be promoted out of their jobs next month?
The Government has made a commitment in Parliament to seek an agreement on this with the EU. A change of Minister does not alter that.
Have the children covered by Clause 37 been recognised as refugees?
Clause 37 covers the same group who are relevant to the Dublin Regulation. These are children who have applied for International Protection in an EU member state, but have not yet been granted protection and who have family in the UK and vice versa.
Under Dublin those children who are transferred to be reunited with family members will have their claim for international protection considered in that new country and, if appropriate subject to their individual circumstances, they may qualify to be granted refugee status or humanitarian protection. So, at the point at which they transfer for the purposes of family reunion they have not been recognised as refugees under the Refugee Convention.
Why is a child’s best interest in Clause 37 mentioned in respect of transfers into the UK but not in relation to transfers to the EU?
The wording of the legislation continues to consider child’s best interests with respect to the transfer of children into the UK and from the UK for the purpose of family reunion. The phrase ‘equivalent circumstances’ for UK based children in Clause 37 ensures that children’s best interests are included.
In addition, our existing statutory obligations under Section 55 of the Borders, Citizenship and Immigration Act 2009 require us to take into account the need to safeguard and promote the welfare of children who are in the UK when carrying out our immigration and asylum functions.
Annex I
Section 17 of the European Union (Withdrawal) Act 2018
Family unity for those seeking asylum or other protection in Europe
- A Minister of the Crown must seek to negotiate, on behalf of the United Kingdom, an agreement with the EU under which, after the United Kingdom's withdrawal from the EU, in accordance with the agreement—
- an unaccompanied child who has made an application for international protection to a member State may, if it is in the child's best interests, come to the United Kingdom to join a relative who—
- is a lawful resident of the United Kingdom, or
- has made a protection claim which has not been decided, and
- an unaccompanied child in the United Kingdom, who has made a protection claim, may go to a member State to join a relative there, in equivalent circumstances.
- For the purposes of subsection (1)(a)(i) a person is not a lawful resident of the United Kingdom if the person requires leave to enter or remain in the United Kingdom but does not have it.
- For the purposes of subsection (1)(a)(ii), a protection claim is decided—
- when the Secretary of State notifies the claimant of the Secretary of State's decision on the claim, unless the claimant appeals against the decision, or
- if the claimant appeals against the Secretary of State's decision on the claim, when the appeal is disposed of.
- In this section—
“application for international protection” has the meaning given by Article 2(h) of Directive 2011/95/EU of the European Parliament and of the Council on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted;
“protection claim” has the same meaning as in Part 5 of the Nationality, Immigration and Asylum Act 2002 (see section 82(2) of that Act);
“relative”, in relation to an unaccompanied child, means—
- a spouse or civil partner of the child or any person with whom the child has a durable relationship that is similar to marriage or civil partnership, or
- a parent, grandparent, uncle, aunt, brother or sister of the child;
“unaccompanied child” means a person under the age of 18 (“the child”) who is not in the care of a person who—
- is aged 18 or over, and
- by law or custom of the country or territory in which the child is present, has responsibility for caring for the child.