Sarah is twenty one. Originally from Jamaica, she moved to the UK when she was twelve after her father died. She came to the UK to reunite with a much older step-sister who she hardly knew. Adapting to life in Britain and to the rules of her new family proved to be difficult and by the time she was fifteen, her step-sister wrote a letter to the Home Office saying she didn’t want to look after her any longer. In response, the Home Office withdrew her authorisation to stay in the UK and ordered her to return to Jamaica. ‘My sister packed my bags, and put them out in the street. I was really scared’, she recalls. But Jamaica was by then an alien place to her. She felt that Birmingham was her home, so decided to abscond rather than get her flight back to Jamaica. It was a tough time. She moved from one shelter to another, slept rough and met some ‘bad friends’.
A colleague and I met Sarah in the office of a charity that helps destitute people in Birmingham a few weeks ago. She came to the interview with her six-week-old twins. She looked stressed. For the last three weeks she has been living in a temporary accommodation provided by the city council. It is a poorly furnished room in a local hostel. ‘I can’t even get to cook my own meal and I kind of have to wash the babies’ bottles in the shared toilet over the sink’. But the worst of all, she adds, is that no one has told her for how long she will be supported and housed.
While telling her story, her eyes return to her babies, who are sleeping quietly. What she fears most, she says, is the idea that social services may take them away from her. She is on anti-depressants and has been seeing a counsellor on a weekly basis since she was four months pregnant. Sarah grew up in the UK and has spent half of her life in Birmingham. Nevertheless, she is an undocumented migrant. Her Birmingham-born and bred twins are undocumented migrants too.
Sarah’s twins are not isolated cases. According to recent estimate, the population of UK-born children from undocumented migrant parents is in the tens of thousands. If we also add independent undocumented migrant children and children who travelled with or joined their close family, we are looking at a figure of over a hundred thousand minors, mostly resident in the Greater London region.
Undocumented migrant children are a multifaceted and diverse group. These children can be migrants who entered the UK independently or with their families, or were born to parents without legal status already residing in the UK. Their motives for migration also vary, and include family reunification, seeking protection from persecution, or searching for better living conditions, education and opportunities. And there are those who have been trafficked.
The category ‘illegal immigrant’ only appears to be straightforward. At a closer look, the boundaries of the category become blurred and fluid, and its core reveals a diverse and non-homogeneous set of migrants who, depending on their entry routes to Britain, their motivations, the timing of their arrival and in the case of children their condition as dependent or independent migrants, encounter different institutional and policy arrangements in the UK. It is not a fix status, and migrants who may have come to the UK regularly can then find themselves undocumented as a result of a change of policy.
The label of ‘illegal’ assigned to some migrants rather than others is not an abstract legal category. It is instead the product of specific immigration policies which are embedded in current political debates on citizenship, security and belonging, as well as in the broader processes of restructuring the labour market and welfare system in Britain and the EU. The current increase in undocumented immigration in most EU member states therefore should not be looked at in isolation. Rather, these migration flows are the result, or the by-product, of concrete policies adopted over the last decade which have restricted access to the asylum process, and curtailed regular migration routes for non-EU low-skilled migrants.
While there is broad recognition of the importance of protecting children in mainstream public policy, governments are facing the challenge of how to comply with their international and humanitarian obligations and meet the protection needs of undocumented migrant children, at a time when their overall concerns are shifting towards tougher immigration policies, draconian cuts to the welfare and stricter border control to combat ‘illegal immigration’.
Governing undocumented migrant children is a ‘difficult territory’ in the words of Beverley Hughes, former Labour Minister for Citizenship and Immigration. Undocumented child migrants find themselves at the intersection of different policy agendas in which state intervention differs, where different legal and policy frameworks operate, where international obligations and national priorities do not always coincide, and where agendas and discourses constructed for different audiences (i.e. domestic and international) meet and sometimes clash.
The unresolved tension between commitments to protect children and children’s rights, on the one hand, and to secure borders, on the other hand, shapes not only the governance of undocumented migrant children but also, directly and indirectly, their experiences and life chances in Britain. They are ‘in a position of triple vulnerability: as children above all, as migrants, and as undocumented migrants’, making of them, in the words of the Council of Europe Human Rights Commissioner Thomas Hammarberg, ‘one of the most vulnerable groups in Europe today’.
Against this background, as Jessica Mai Sims writes, the local level plays a crucial role. Local authorities are responsible for providing assistance and support to migrant children - whether documented or not - living in their area, and to coordinate other local service providers. Local authorities, together with schools, GPs and other local agencies have the difficult task in their everyday practices of mediating between conflicting policy agendas and interests. They are left to manage the micro-social costs of immigration policy and, increasingly, are asked by the central government to perform tasks of immigration control traditionally assigned to the Home Office. This is illustrated by the responsibility placed on health professionals in establishing a patient’s residency status, by asking social workers to assess failed asylum seekers entitlements to access support (which might lead to the break up of the family), and by asking schools to cooperate with the UKBA on parents who do not comply with immigration controls. A senior manager at a FE college in London voices his sense of unease for these new measures: ‘it is now my duty to check that new students hold valid passports and visas. But I work in a school. I don’t work for UKBA. That’s not the job I applied for’.
But the local level is also a place of conflict, where different visions of childhood shape modalities of action and motivations, where the national ‘politics of childhood’ grounded in state-centred policies and visions of citizenship and belonging encounter the global ‘politics of childhood’, centred on the individual as rights bearer and constructed within the international human rights discourse and its expanding system of global governance.
According to international law all people are holders of rights, including ‘undocumented’ migrants. A number of civil, political, social and economic rights apply to individuals irrespective of their legal or administrative status, which are formally guaranteed under legal instruments such as the European Convention on Human Rights, the Universal Declaration of Human Rights or the International Covenant of Economic, Social and Cultural Rights. Children’s rights in particular are enshrined in the UN Convention on the Rights of the Child (1989) which protects migrant children regardless of their status. However, the enforcement of such international instruments depends significantly on their incorporation into domestic law. In the UK, the UNCRC was ratified in 1991, with a reservation on immigration and nationality matters. The reservation was withdrawn 2008, but has yet to be incorporated into national law, despite recent efforts to do so.
Children in the UK immigration system are treated firstly as migrants, and secondly as children with particular rights and needs. In spite of the British government's decision to withdraw the reservation to the UNCRC and the publication by the UK Border Agency of a code of practice safeguarding the welfare of children in the immigration system, the treatment of undocumented migrant children remains largely separated and different from the treatment of all children.
Even when legal provisions exist, research findings from the UK and other European countries show that access to these rights in practice is often far from trouble-free. Europe-wide studies indicate that barriers to access can be of three types: practical, institutional and societal. Lack of access to social rights and services is often due to confusion among the service providers about what the rights of ‘undocumented’ migrants are. This confusion is partly the result of conflicting legislation and partly due to the frequent change of policies which result in service providers being outdated and in constant need of retraining.
The debate around migrant children’s detention is a significant example of the conflict between the imperatives of safeguarding children, and ensuring their best interests and the priorities of the immigration agenda. The extended and extensive use of detention of children has raised serious concerns about the treatment of children subject to immigration control. A total of 1,271 children were held in detention in 2009 for the purposes of immigration control. Many non-governmental organizations and human/child rights agencies have criticised the UK Government’s use of detention for violating children’s rights under international conventions. ‘They are the only children in this country who can be locked up indefinitely without the oversight of the courts and without having committed any crime’, according to the Bail for Immigration Detainees campaign.
During the last electoral campaign the Liberal Democrats pledged to end children’s detention. Chris Huhne called the imprisonment of innocent migrant children ‘inhumane... unnecessary... un-British’. The coalition government included the pledge in its joint programme and remains committed to implement it, however recent statements by the Immigration Minister Damian Green appear to be moving from ‘ending’ to ‘minimising’ children’s detention. Moreover, doubts have been raised on the nature of the alternatives to child detention currently being piloted by the Home Office which seem to embrace a narrow definition of the UKBA's duty to safeguard and promote the welfare of children sanctioned in the Borders, Citizenship and Immigration Act 2009.
The post-election period for undocumented migrant children and support agencies in the UK has been marked by wide-spread uncertainty and confusion. Occasional sweeping statements by the Home Office on fast-track deportations, reception centres to be built in Kabul and a cap on migration, the announced draconian cuts to public spending and welfare provisions, and the lack of overall strategic directions and clarity on the policy agenda for migrant children all contribute to a general sense of anxiety among the people we have interviewed in the last months. ‘It’s not really clear yet to us’ – said a senior caseworker – ‘how many times one needs to quote ‘the Big Society’ in an application to secure some funding for our services’.