The Invicta Law Story: Part II

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Lessons From a Frontline County

In the field of child welfare and protection, there are few areas as complex and demanding as the provision of care for unaccompanied asylum-seeking children (UAS children or UASC). With over a decade of experience advising local authorities on legal duties owed to UASC and migrant families without recourse to public funds, Carmel Maher, Senior Solicitor at Invicta Law, sheds light on the intricacies and challenges of this field. Her journey, intertwined with the evolution of asylum law over the years, offers invaluable insights for social care teams navigating similar challenges.

Discovering a Passion for Asylum Law

Asylum law wasn’t a chosen path for Carmel; it was an unexpected turn that quickly transformed into a calling. “I did not choose this area of the law, it chose me,” she reflects. Thrust into the deep end with a High Court Judicial Review involving a young asylum seeker on her second day on the job, Carmel’s initiation coincided with a significant surge in migrant arrivals to the UK in 2014.

With a background in Child Protection law, Carmel was well-prepared to navigate the complexities of asylum law. However, her recruitment by Kent Legal Services (now Invicta Law) during a crisis period marked a steep learning curve.

As one of the main entry points for migrant children coming into the UK, Kent faced an unprecedented challenge in managing and caring for large numbers of incoming UAS children. This daunting task fell heavily on Kent County Council’s Children’s Services, propelling Carmel into the heart of what was then referred to as the “migrant crisis”.

“It was a baptism of fire,” Carmel recalls. “Migrants travelling in the back of lorries started arriving in large numbers from across the Channel. The client was drowning under the sheer number of incoming UAS children. Legal challenges were coming in thick and fast, with several pre-action letters a day, and court cases were lined up like dominos. It was a daunting time for all of us.”

Years later, having navigated countless challenges, Carmel approaches this complex area of the law with quiet confidence and a firm belief in its critical function.

She remains committed to learning, saying, “I have seen, advised on, represented and trained our clients on such an array of problems in this field of practice that I feel confident in calling myself a specialist. I would never claim to be an expert because one never stops learning in this arena, but I would settle for the lesser moniker.”

Why It Matters

In the year ending June 2023, the Home Office received 5186 applications from asylum-seeking children, underscoring the crucial need for specialised legal support for local authority Children’s Services in this area.

“We’re now seeing thousands of UAS children entering the UK each year,” notes Carmel, highlighting the scale of the challenge.

For social workers, who often serve as the initial point of contact for these children, having a clear understanding of the local authority’s legal duties and correctly implementing these is crucial not only for resource allocation but also for positively impacting lives.

“Many of these young people arrive with their own past traumas. Providing the right care can transform their lives.”

Carmel’s work, and that of her team, focuses on empowering local authorities and social care teams with the knowledge and tools needed to navigate the complex issues surrounding UASC care effectively.

Navigating an Evolving Legal Landscape

The legal framework surrounding duties to UAS children began to evolve significantly around 2008/2009 with some important appeal court decisions. An exponential rise in legal challenges followed with the sharp rise in incoming UAS children.

This was a period of swift learning and adaptation for Carmel and her colleagues, driven by the urgent necessity to guide their clients through a seemingly endless stream of legal complexities.

“Working at the time for Kent Legal Services, we were in one of three local authorities receiving the lion’s share of incoming UAS children, along with Croydon and Hillingdon,” she recalls. “As the number of asylum seekers entering the UK increased, so did the legal challenges. There was no time to waste. We had to learn quickly in order to help our client change its practices and direction of services to comply with the law, all the while dealing with large volumes of pre-action letters and urgent legal challenges.”

This intense period of learning and adaptation shaped Carmel’s approach to what she describes as a “very contentious and litigious area” of practice for Children’s Services departments.

“Over the years, we have been involved in many high-profile cases, establishing new case law and defending our clients’ practices and services,” Carmel notes, reflecting on her team’s journey of learning through each case. “We have advised on and responded to hundreds, perhaps even thousands, of pre-action letters and have defended our client’s position in court on numerous legal challenges.”

Carmel and her team have also had notable successes in legal challenges involving Human Rights Assessments and the withdrawal of support from UAS children whose asylum claims have been refused.

The Challenge of Age Assessment

Supporting local authorities in striking a balance between swiftly resolving cases while also advocating for the rights of asylum seekers is one task that Carmel believes is surprisingly easy to achieve.

“We simply show them what the law requires them to do as a Children’s Service, which includes unaccompanied children and their particular needs,” explains Carmel. “The asylum decisions and the right to remain are not decisions our client has to make, and in fact, they should not be involving themselves in a young person’s asylum claim except to make sure they have the services of an immigration solicitor.”

“Children’s Services departments are the specialist professionals in safeguarding children and assessing and supporting the needs of children they are accommodating. We are there to help them determine if the person is or is not a child in the first place.”

There is a process in place to do this called age assessment.

Carmel and her specialist asylum team are constantly seeking innovative ways of uncovering new evidence to aid social workers in making informed decisions in this area. They pioneered the use of radiographs of third molars, social media analysis, Eurodac information, writing to immigration authorities in other countries for information, obtaining mobile phone records, and researching events and conditions in the country of origin to match the UAS child’s story.

“We hold the hands of social workers who conduct these assessments, ensuring they remain within legal boundaries while making rational, researched decisions,” says Carmel. “It’s too easy for a social work-focused practice to unintentionally step over the line of its statutory legal duties, which can rapidly lead to costly legal challenges. It is our mission to prevent that”

A Partnership Approach

Although Kent still has vast numbers of UAS children to care for, many arriving in Kent are now being dispersed to other UK local authorities under the National Transfer Scheme. This expansion has seen Carmel and the Invicta Law Asylum Team expand their area of practice, as Children’s Services across the UK seek out their advice.

Working in collaboration with organisations like The South East Strategic Partnership for Migration (SESPM) and the National Age Assessment Board (NAAB), Carmel believes she and her team are perfectly positioned to continue providing training and legal guidance to help local authorities navigate “the complex maze” that looking after UAS children has become. She is concerned, however, that the value this represents isn’t always immediately obvious.

“When local authorities are struggling to pay for basic statutory services, they are reticent to part with money for legal advice. However, we believe this can prove to be a false economy,” warns Carmel. “There are many community care solicitors firms and migrant charities out there who are on the lookout for any local authority not doing its duty to this contingent of children. We want to make sure they never waste their money on defending hopeless legal challenges because they have been caught short in their legal duties, or by looking after people who may not be children at all.”

Carmel highlights the importance of continued collaboration to ensure that every unaccompanied asylum-seeking child receives the necessary care and support, concluding, “Local authority Children’s Services around the UK have a heavy responsibility to bear as the corporate parent of these children. Our role is simply to ensure they know their obligations and understand the reasons behind them.”

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Carmel Maher is a Senior Solicitor at Invicta Law. She specialises in advising local authorities on all aspects of legal duties owed to unaccompanied asylum-seeking children (UASC) and migrant families with no recourse to public funds (NRFP). She also provides advice and training in age assessments and human rights assessments to social workers and legal teams in local authorities throughout the UK. She has extensive experience responding to pre-action letters, preparing defences of judicial review claims, and instructing Counsel in the High Court, Upper Tribunal of Immigration and Asylum Chamber and the Court of Appeal.

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