The EU Settlement Scheme: children, care leavers and local authority duties
Local authorities are coming under increasing pressure to ensure that children and care-leavers with EU law rights to reside in the UK make an application to the EU Settlement Scheme (“EUSS”) before the deadline of 30 June 2021, writes Gráinne Mellon.
The Home Office has not yet indicated what its policy will be in relation to late applications - and as things stand, vulnerable children and care-leavers stand to lose important residence rights in the UK if an application is not made on their behalf before the deadline.
Recent research from the Children’s Society reveals worrying data that more than 50% of identified EU children in care and care leavers have not yet applied to the EUSS. Many more children have not yet been identified and are also at risk of being undocumented or losing important rights overnight. [1]
The Government has issued guidance for looked- after children and care leavers confirming that local authorities have mandatory duties to identify relevant children in need/looked after children and care-leavers and to provide support to these children and young people to ensure that an application is made on their behalf. [2]
While some applications to the EUSS may be straightforward, the vast majority will have complexities which may require further legal advice- for example, cases where children do not have identity documents, where there is a lack of parental consent, or where the child/young person has a criminal record.
There are 72 grant funded organisations who can help local authorities progress applications on behalf of children and care leavers - and advise and assist with complex applications in particular. [3]
Some children and care leavers will qualify for legal aid and if so, attempts should be made to find a suitable solicitor as soon as possible. In some cases, local authorities may need to pay privately to ensure that applications to the scheme are made for every child and care-leaver to whom they have statutory responsibilities. The crucial factor is to ensure that an application is made on behalf of relevant children and young people in advance of the 30 June 2021 deadline.
A recent decision of the High Court (Family Division) has confirmed the urgency of the position for local authorities - and their mandatory obligations to progress applications on behalf of children and care leavers in particular.
In W and Z (Eu Settled Status for Looked After Children) [2021] EWHC 783 (Fam), Mr Justice Macdonald reiterated the importance of timely applications being advanced on behalf of looked after children and stated in clear terms:
“It is not acceptable to leave children in a position of ‘limbo’ with respect to their immigration position. A late application will result in the child becoming undocumented for a period, with the concomitant impact on access to services and benefits and liability to immigration enforcement. Even a short period undocumented can have an adverse impact on a child or young person.”
The Court also confirmed that local authorities can progress EUSS applications on behalf of looked after children, and can apply for any identity documents necessary for such an application, even in the face of parental objection - under their powers in section 33 (3) of the Children Act 1989 and without recourse to the courts in all but exceptional cases.
The judgment gives a green light to local authorities to make sure relevant EUSS applications are advanced on behalf of children in care even if there are obstacles to this application. It also serves as a reminder as to the real impact to children and young adults who miss the deadline - with all that that means for their future identity and residence rights in the UK. Ultimately, this case, combined with recent research from the Children’s Society, reminds local authorities that there is just under three months to go and a huge amount of work to do.
Gráinne Mellon is a barrister at Garden Court Chambers. She can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..
[1] Report of the Children’s Society: Looked After Children and the EU Settlement Scheme - A Guide for Local Authorities
