21 January 2016

Implications of the Immigration Bill 2015-2016

The Immigration Bill 2015-16 has major implications for access to post-school education and the provision of leaving care support for young people who do not have leave to remain in the UK

The Immigration Bill has completed its second reading in the House of Lords, and has begun line-by-line consideration at the Committee Stage in the Lords. It includes provisions which have major implications for young people who are not asylum seekers and do not have leave to remain in the UK when they reach 18 years of age. Many of these young people will have been or are currently being looked after by local authorities.

The effect on care leavers

The Immigration Law Practitioners’ Association (ILPA) has produced a detailed briefing on the Bill, and says Schedule 9 would prevent local authorities providing leaving care support to these young people (see p.14 of their briefing). According to the Association:

‘Care leavers caught by the Bill, however, will not be allowed to remain in their existing foster placement whilst they make the transition to adulthood…or benefit from provisions which ensure that a personal adviser is allocated to children leaving care in a role established in regulations to provide advice and support to young people leaving care in place of a parent.’

Amendments, in the names of MPs Angus Robertson, Stuart McDonald, Anne McLaughlin and Gavin Newlands (all SNP), were introduced at the Report Stage in the House of Commons on 1 December 2015, proposing that the provisions which would prevent local authorities offering leaving care support should be deleted from the Bill.

What it means for Scotland

The relevant references in the Bill are to the Children Act 1989 and related Regulations apply to England or to England and Wales, but elsewhere in the Bill, and in the accompanying Explanatory Notes, it is clear the Government’s intention is that the provisions should apply throughout the UK. The Notes also say that ‘there will be further consultation with the devolved administrations’, about parts of the Bill which have implications for applicable law, though the ILPA says it does not know whether this has happened so far.

Immigration takes precedence over child welfare

The thrust of the Bill is to ensure immigration law takes precedence over child welfare legislation for families with children and adults who have been in the care system and who have failed applications for asylum, or who have no right to remain in the UK. These provisions mean that local authorities will no longer have powers to support children under relevant children’s legislation.

Tuition fees for care leavers affected

A late amendment to the Bill proposed by the UK Government would prevent local authorities from providing funding for higher education tuition fees for a care leaver who has limited leave to remain (humanitarian protection, discretionary leave or leave under the immigration rules) or a pending asylum application. In Scotland, these fees are paid directly to institutions on behalf of the Scottish Government by SAAS (the Student Awards Agency for Scotland), so it is assumed that the UK Government’s intention is that the proposed changes should also apply to SAAS.

Impact on the Children and Young People (Scotland) Act 2014

The ILPA points out that the changes proposed will cut across the generally accepted view that there is a transition to adulthood, even when certain legal rights are gained at age 18, and that this is even more important in supporting the transition of looked after young people from care placements. The Bill will have significant implications for the enhanced leaving care provisions of the Children and Young People (Scotland) Act 2014.

Read our guidance supporting the education of looked after children with uncertain immigration status