Policy paper

Nationality and Borders Bill: children factsheet

Updated 13 October 2023

1. Was the impact on children considered in the drafting of the Bill?

As required under the Public Sector Equality Duty, we have continuously considered potential equalities implications throughout the policy development process.

The Equality Impact Assessment for the Bill was published on 16 September 2021. We will continue to monitor the impact of our provisions as the measures are further developed and then operationalised.

1.1 Will the provisions in the Bill be compliant with the Government’s legal obligations relating to children?

The measures in this Bill are compliant with all our domestic and international obligations, including the statutory requirement to take account of the need to safeguard and promote the welfare of children in accordance with section 55 of the Borders, Citizenship and Immigration Act 2009.

2. Nationality

2.1 Does the application of the good character requirement to children in the nationality provisions conflict with the statutory obligation in section 55 of the Borders, Citizenship and Immigration Act 2009? 

  No. The Government does not consider the good character test to be at odds with the statutory obligation in section 55 of the Borders, Citizenship and Immigration Act 2009, or that it would be appropriate to simply ignore such heinous crimes.  

However, where a child has been convicted of a criminal offence, sentencing guidelines require that any custodial or non-custodial sentence is adjusted to take into account the child’s age and particular circumstances and any mitigating factors such as their ability to understand the consequences of their actions. Therefore, although the same policy applies to children and adults alike, the lesser sentence handed down to children will frequently mean they are less likely to meet the threshold for refusal of citizenship.  

2.2 Will children who are genuinely stateless be affected by the changes to the child statelessness provisions?

The policy has been developed in response to concerns that a number of non-settled parents, many of whom did not have permission to be in the UK at the time of their child’s birth, have chosen not to register their child’s birth with their own authorities and qualify under the current child statelessness provisions. 

We will amend the existing registration provision for stateless children by adding a requirement that the Secretary of State must be satisfied that the child cannot reasonably acquire another nationality.  This will encourage parents to acquire a nationality for their child where they can.

It will not affect genuinely stateless children, or those who have a nationality but whose parents cannot approach their own country’s authorities for a passport or documentation.   

The UK is a signatory to, and committed to the 1961 UN Convention on the Reduction of Statelessness, and we have taken into account the approach recommended by the UNHCR Guidelines No. 4 in drafting this provision.

2.3 Will the Government reduce the fee for child citizenship applications? 

Following the Court of Appeal’s ruling in February last year the Home Office committed to reviewing the child registration fee in line with its duties under Section 55 of the Borders, Citizenship and Immigration Act 2009. Subsequently, an appeal was made to the Supreme Court on a separate ground in this case, which was heard on 23 and 24 June 2021.

It was important that the Supreme Court had the opportunity to give its view on the questions raised by this case before concluding the review of the fee. We are now able to do so following the judgment of 2 February 2022, and hope to finalise the review shortly. We will share the results in due course.

3. Asylum

3.1 Do the inadmissibility provisions in the Bill apply to unaccompanied asylum-seeking children (UASC) and accompanied children who arrive in the UK in a family group?

Unaccompanied asylum-seeking children will not be considered for third country inadmissibility action.  

Children in a family group are not excluded from inadmissibility action on third country grounds. Their asylum claims may be treated as inadmissible, if the inadmissibility criteria are met, and if their family group are also receiving such a decision and there is a safe third country to which the family could be removed.

EU countries are regarded as fundamentally safe and claims from EU nationals will be treated as inadmissible unless exceptional circumstances apply. This applies both in the case of children claiming in their own right or as dependants on a parent’s claim. A child’s best interests are not a factor in assessing whether a fear of persecution is well founded, but in any event, it is not in a child’s best interests to pursue a claim through the full asylum process if that claim is unfounded and bound to fail because they have no well-founded fear in their country of origin.

3.2 Will children be exempt from differentiation?

Blanket exemptions in statute could encourage people to claim to be children to avoid Group 2 refugee status. This would undercut the policy intent and blunt our deterrent. 

However, there is flexibility in the powers to not apply differential treatment in all cases, and the specific circumstances of each case will be relevant. We recognise that in some cases, due to their particular situations and vulnerabilities, children may not be reasonably expected to claim asylum in another safe country or to claim as soon as reasonably practicable. Detail will be set out in policy guidance and Immigration Rules in due course. 

3.3 Will children who apply for asylum be subject to the No Recourse to Public Funds (NRPF) condition?

The Government will take into account people’s individual circumstances when determining differentiated entitlements.

Detail will be set out in due course, but we will take into account relevant factors when considering imposition of this condition, if imposed at all, including impact on families, children, local authorities, and other vulnerabilities and protected characteristics.

UASC will not be subject to NRPF.

3.4 Will Children be accommodated in accommodation centres?

There are no current plans to place those with children in accommodation centres at any stage of the asylum process.

Unaccompanied asylum-seeking children are supported by local authorities under different arrangements as looked after children which already includes the provision of accommodation.

3.5 Will UASC be subject to offshore asylum processing?

Unaccompanied asylum seeking children will not have their claims processed overseas. This demonstrates our commitment to safeguarding and promoting the welfare of children, as expressed in section 55 of the Borders, Citizenship and Immigration Act 2009.

3.6 Will families with children be subject t offshore asylum processing, or will families be split up?

After a fuller consideration of issues pertaining to vulnerability, we have determined we should not be drawn further into listing out al possible exemptions to removal. Partly, this is because exemptions depend on the particular circumstances of the countries we are working with. More importantly, though, is that to be definitive about exemptions from the policy at this early stage is likely to hamper its potential to be effective and also incentivise people smugglers to target the most vulnerable in hopes of keeping their operations viable.

It is essential we do not curtail our efforts to undercut the business model of the people smuggling and discourage other dangerous or unwanted behaviours by eroding the policy before it has even begun.

3.7 Why are there no measures on UASC family reunion in the Nationality and Borders Bill?  

The Government has reviewed the future approach on safe and legal routes to the UK, including on UASC family reunion.  The report on the outcome of that review was laid in Parliament on 22 July 2021.  Policies announced in that report do not require primary legislation.

3.8 What policies are you taking forward from the review of safe and legal routes on UASC including on family reunion? 

  We will continue to work with UNHCR to ensure our resettlement schemes are accessible and fair.  The UK Resettlement Scheme will resettle vulnerable refugees, including children, from countries where the need is greatest.   

We have carefully considered the extent of the UK’s legal obligations, including under Article 8 of the ECHR, and we consider that our existing refugee family reunion policy is compliant with those obligations.  Those obligations do not require us to facilitate all family reunions.    

However, we recognise that some applicants do not meet the current Rules but in some cases there will be exceptional circumstances which warrant a grant of leave. To strengthen our existing policy, we will provide additional clarity in the Immigration Rules on the exceptional circumstances where we would grant leave to a child seeking to join a relative in the UK.    

Since this report was laid in Parliament we have also made commitments with respect to Afghanistan. Spouses, partners and dependent children under the age of 18 of identified eligible individuals will be eligible for the Afghan Citizens’ Resettlement Scheme. Other family members may be resettled in exceptional circumstances.  The Afghan Relocations and Assistance Policy offers relocation to current and former employees who could face threats related to their occupation, as well as their close families.   

3.9 Will the Government create a route for unaccompanied asylum-seeking children to claim asylum in the UK?

The Government has met its one-off commitment to transfer 480 unaccompanied asylum-seeking children from Europe to the UK under section 67 of the Immigration Act 2016, often referred to as the Dubs scheme.

Local authorities would be expected to support children who do not have family in the UK. According to latest published statistics from the Department for Education, for the year ending 31 March 2021, there were 4,070 UASC being cared for in England. This represents around 5% of all looked after children in England.

There are significant, additional pressures in our domestic system as demonstrated by our decision to mandate the National Transfer Scheme for all local authorities with children’s services in the UK.

We have no plans for a new transfer scheme from Europe for UASC, reflecting our new global approach to the Immigration system. 

3.10 What routes are available for UASC family reunion now the UK has left the Dublin Regulation?   

Unaccompanied asylum-seeking children in Europe with family members in the UK are able to apply to join eligible sponsors, such as those with refugee leave or humanitarian protection or with British or settled status, under existing Immigration Rules.     

The existing Immigration Rules already made provision for a child to be reunited with a parent in the UK either under the Refugee Family Reunion Rules or via Appendix FM - depending on the immigration status of the parent.    

In addition, paragraphs 319X and 297 of the Rules are extremely flexible provisions that already allow for children to apply to join a wide range of adult family members who are not their parents, if the relevant requirements are met.  Under these Rules, we do not restrict the range of those family members.   

The requirements are that there are serious and compelling family or other considerations which make exclusion of the child undesirable; suitable arrangements have been made for the child’s care and those relatives can adequately maintain and accommodate the child without recourse to public funds.   

3.11 Will children be exempt from having to comply with the requirements of an evidence notice or a priority removal notice?

Children will not be exempt from these measures as doing so risks encouraging those over the age of 18 to claim asylum as unaccompanied asylum seeking-children. This would perpetuate the issues these clauses are designed to address. However, we do not generally expect children to be a priority for removal and the vast majority of priority removal notices will be issued to adults.

The Home Office takes its responsibility for the welfare of children seriously. The best interests of the child are a primary consideration in every decision taken in respect of the child. 

We recognise that there may be good reasons why someone is unable to provide evidence before a specified date. That is why the ‘good reasons’ test has been created.

Evidence provided by a child will be considered in the light of their age, degree of mental development and maturity currently and at all material times.  Guidance will be published setting out how decision-makers should take into account the age of the child in the exercise of their discretion.  

Any such reasons provided will be fully considered by decision-makers on a case-by-case basis, including by the judiciary should a claimant appeal the refusal of a human rights or protection claim.

Where an individual in receipt of an evidence notice or a priority removal notice has good reasons for late or non-compliance, the credibility consequences for late evidence do not apply.   

4. Immigration control

4.1 Will the increase in sentencing for illegal entry offences affect minors?  

  The criminal justice system sets the age of criminal responsibility.  In England this is set at 10 years.  We will not be specifically targeting minors for this offence.

4.2 Why do you not exclude minors from the illegal entry offences?

There is a risk that excluding minors would lead to migrants claiming to be younger than they are in an attempt to avoid prosecution. A specific exclusion could actually have the opposite impact in that it could encourage more children to put themselves at risk in making these dangerous journeys because they know they will not face any sanction.  

5. Age Assessments

5.1 Will the Home Office conduct age assessments on every unaccompanied child, even where their claimed age is not disputed?  

    No. There is no need to conduct comprehensive age assessments on people whose age is not in doubt. Such an approach would serve no purpose; it would subject someone who is believed to be a child to a lengthy assessment process, and it would take significant resource away from the main task of seeking to establish the age of those whose age is in doubt.  

5.2 How would you ensure the use of scientific methods for assessing a child’s age are ethical and not harmful to children?

The Home Office has a statutory commitment in relation to safeguarding the welfare of children. We are introducing scientific age assessments to help better protect against adults being treated as children – and ensure vulnerable children can swiftly access the support they need.

5.3 How are you going to ensure that genuine children don’t slip through the net and are classed as adults after age assessment?

We believe the measures we’re planning to introduce will make the system more robust and result in higher quality decisions on people’s age.

As part of these measures, in due course, individuals will also have a full right of appeal (including access to legal aid) to the First Tier Tribunal where they have been assessed as an age other than that claimed. This will provide for independent judicial oversight of the process ensuring the highest standards of decision making are adhered to. In the meantime, individuals will still be able to pursue the existing judicial review process.

The UK is one of very few European countries that does not currently employ scientific methods of age assessment – such as X-rays of the teeth, collar bone, and or wrist bone.

The use of ionising radiation in the UK is highly regulated. We will ensure that any methods used comply with all regulatory requirements and standards and the Age Estimation Scientific Advisory Committee have been asked to advise on the ethical considerations for the use of medical imaging techniques.

There are a number of potential methods that do not involve ionising radiation, which the Home Office is also exploring, but these may require further research and development to support their technical and commercial viability in assessing the ages of age-disputed persons.

6. Modern slavery

6.1 How have children been considered in the modern slavery clauses of the Nationality and Borders Bill?

We recognise our duty to safeguard the welfare of children and the protection of their needs.

We consider that it is appropriate that the modern slavery measures in the Bill apply to all individuals, but that they are considered on an individual, case-by-case basis. We therefore have not created a specific carve-out for children per se.

The guidance underpinning these measures and the decision-making around them will be made by trained decision-makers and will consider the needs of children and specific safeguarding vulnerabilities.

Indeed, our existing modern slavery statutory guidance provides for the specific vulnerabilities of children, and all decision-makers in the competent authorities receive specific training on children as potential victims, including distinct training on child criminal exploitation.

As we proceed to operationalise the measures in the Bill, we will continue to engage with experienced professionals who work with child victims to ensure the specific vulnerabilities and needs of children are understood and considered throughout.

We remain committed to the principle of acting in the best interests of the child and that this commitment continues to underpin our approach to the specific needs of children and young people. The UK Government recognises its statutory duties, and this is unchanged by the Bill.

6.2 Will children be exempt from the requirements in Clause 57 and 58 to provide information relating to being a victim of modern slavery or human trafficking before a specified date?

By introducing a statutory requirement to provide information before a specified date, we hope to identify potential victims at the earliest opportunity, ensuring those who require protection are afforded it quickly.

Exempting children from this requirement could inadvertently impact our ability to proactively identify and support victims. It also has the potential to incentivise individuals to provide falsified information regarding their age or to put forward falsified referrals regarding the timings of any exploitation that took place.

However, safeguards are built in. We will make clear in guidance how children, or those who were children at the time of their exploitation should be considered, taking into account their particular vulnerabilities and specific needs.   

The Independent Child Trafficking Guardians (ICTG) service is currently available in two thirds of local authorities across England and Wales. Where available, child potential victims of modern slavery will be provided with an ICTG to support them in navigating the immigration and National Referral Mechanism systems.

All processes will be designed with the best interest of the child as a primary consideration.   

6.3 Will children be exempt from the public order disqualification set out in Clause 62?

Children will also be considered under this policy on the basis of whether they meet the threshold defined under “threat to public order”.

However, this is not a blanket disqualification and particular considerations will be given to the specific needs to safeguard children.   

Any decision on applying a disqualification to the recovery period will be discretionary and considered by the decision-maker on a case-by-case basis, taking into account the full facts of the case, and will be balanced with our priority to safeguard victims.  

6.4 Do we consider the best interests of the child as part of Clause 64?

This clause applies equally to adult and child confirmed victims of modern slavery. We will continue to factor in the best interests of the child into our consideration of grants of leave for child victims. As is the case under the current discretionary leave guidance, decision makers always consider the circumstances of a child to make sure their best interested are considered when deciding on appropriate leave. We will further make this clear in the Immigration Rules that this is the underpinning principle when considering leave for children.

Decision makers are fully trained in making all leave to remain decisions, including considering all information to assess the best interest of the child as well as account for the need to safeguard and promote the welfare of children. Decision makers will receive training and up-to-date guidance on the policy as outlined in Clause 64.