Thursday, 10 May 2018

Home Office softens line on “no study” restrictions

The Home Office has today issued revised guidance that should help asylum seekers and other migrant children in the UK who have been banned from studying under changes introduced at the beginning of the year.

The new system of immigration bail that came into force in January means that “many children and young people may not be allowed to study while in the UK without leave to remain or enter”, as Coram Children’s Legal Centre puts it. Despite the term “bail”, the regime is not just about release from immigration detention. Its scope includes restrictions on day-to-day activities for immigrants without permission to be in the UK — including students.

Campaigners have raised concerns that under the new system, young asylum seekers are being routinely prevented from studying in the UK. Kamena Dorling, head of policy at Coram, told the Observer last month that “we are already seeing significant numbers of young refugees and migrants being granted immigration bail with no study conditions seemingly as a matter of course and without sufficient examination of their circumstances and the impact”.

The previous version of the immigration bail guidance said that

if the person being granted immigration bail does not have any leave to enter or remain in the UK, it will be appropriate to impose a bail condition restricting work and studies in the majority of cases.

The new version retains this language only when it comes to work. Study is now separated out:

A person does not have to be given a study condition permitting or prohibiting study. They must have at least one other condition of bail. If there is any doubt over whether study should be restricted, no study condition should be applied. Either leave the box on the BAIL 201 notice (or relevant refusal notice) blank, or delete the study condition.

Bail conditions prohibiting study must be authorised at a minimum grade of HEO/CIO equivalent grades. Consideration must be given to whether the individual is undertaking significant exams, for example GCSEs, “A” levels or their equivalents or university finals, and what the timescale is when taking removal action into account, and therefore the impact of a study restriction.

The emphasis is in the original text. The guidance, which is now much more detailed than before, goes on to say that

Former UASC care leavers who have turned 18 and who have an application or appeal pending or with ongoing litigation in respect of a decision in relation to their asylum claim, must be permitted to study. They should continue to be permitted to study until they become appeal rights exhausted (ARE). This includes those who did not receive an adverse decision on their application until after turning 17 and a half and so were not granted temporary UASC leave, but still have a right of appeal.

A quick reference table showing when study conditions should be imposed is also included in the guidance. It is reproduced in full below.
Status Bail condition Further information
Under 18s (general) Permit Study Including those who turn 18 in final school year
Under 18s refused LTE for study purpose Do not set a study condition Border Force – where intending to study at state schools without valid EC
Former UASC care leavers Permit Study Until post-ARE
Care leaver Permit Study Until post ARE
Adult asylum seeker (including clandestine entrants) Do not set a study condition Admissions to HE institutions are a matter for the institutions concerned with policies varying between institutions
Section 71 asylum seeker Any condition should reflect conditions of leave Do not use bail to remove a preexisting condition unless circumstances change.
Adult immigration offender (not asylum seeker) Prohibit Study Min CIO/HEO authorisation Consider any exams
Post-ARE (other than care leavers) Prohibit Study Min CIO/HEO authorisation. Consider any exams. Follow steps to check if they arrived in the UK as a UASC/unaccompanied child
Post-ARE UASC/unaccompanied child in receipt of ‘leaving care’ suppor Do not set a study condition Follow steps to check if they arrived in the UK as a UASC/unaccompanied child
Deportation – under 18 Do not set a study condition Including those who turn 18 in final school year
Deportation – adult (no asylum claim) Prohibit Study Min CIO/HEO authorisation But consider any exams
Deportation – adult (DO not signed or in force, outstanding asylum claim/appeal) Do not set a study condition Until ARE or DO signed and in force
Deportation – DO signed and in force Prohibit Study Min CIO/HEO authorisation
Deportation – prison licence Permit Study Limited to “as specified in the licence conditions”

Practitioners familiar with cases of children affected by the January changes welcomed today’s news. Hannah Baynes of Duncan Lewis told Free Movement:

We are very pleased by the encouraging news that the Home Office have now issued new bail guidance which should enable many individuals to study. We have seen multiple cases of vulnerable individuals who have been prevented from studying as a result of the unlawful and unjust conditions imposed by the Home Office. Many of these individuals are care leavers who had been at risk of losing their vital support because of the restriction on studying.

We are hopeful but remain concerned about who this guidance may apply to in the future and it remains to be seen how long it will take before the BAIL 201 forms which imposed these conditions will be reissued.

However, it is very positive news for young asylum seekers for whom studying gives them a purpose whilst they fight for their right to stay in the UK.

The Home Office was asked for comment but had not responded at time of writing.


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