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Priti Patel appears to be “flagrantly” breaking the law by holding lone asylum seeking children who cross the Channel in “effective detention” instead of in care, a charity has said.
Solicitors acting on behalf of Detention Action have written to the home secretary saying the charity has “significant difficulties identifying what lawful power that you have for holding the children at the Kent Intake Unit”.
The government began holding the vulnerable children at the Border Force facility last week after Kent County Council announced it had reached capacity and could not “safely accommodate any new arrivals” crossing the Channel.
The Home Office has repeatedly failed to reveal how many children are being housed at the facility, which is thought to have capacity for 58 people in a large room, alongside a smaller room for children, families and vulnerable people.
The Home Office claimed Detention Action’s allegations were “inflammatory and misleading” but admitted the children were being held under “detention” laws.
Detention Action director Bella Sankey said: “Children who have fled the world’s most dangerous situations and made it to the UK without their parents deserve immediate protection and support.
“However, children in this situation now face effective detention by the UK Border Force for an unknown length of time in an apparent flagrant breach of UK law.
“This should be unthinkable in the UK in 2020 and is why Detention Action has written to the Home Office and Kent County Council for urgent clarification about the present situation and we await their responses with interest.”
Writing exclusively for HuffPost UK, Detention Action campaigns manager Matthew Leidecker said the situation amounted to “child detention by any other name” and that “it must be stopped”.
He said the centres where children are now being held are known as “short-term holding facilities” and are a “darker, harsher, less regulated and more secretive corner of our immigration detention system”.
Leidecker blamed the situation on the “collapse” – after “years of warnings” – of the Home Office’s national transfer scheme, which is designed to protect and house unaccompanied asylum seeking children.
Detention Action has questioned the legal basis for holding children at the intake unit, insisting the 2014 Immigration Act banned the detention of unaccompanied children unless they are bound for deportation, and imposing a 24-hour time limit on that detention if strict conditions are met.
But the Home Office cited laws from 1971 which state people “may be detained” by immigration officers pending an examination of whether they are a British citizen, whether they are permitted to enter the UK without leave and whether they should be given leave to remain in the country.
They can also be detained for an examination by a medical inspector.
The Home Office still failed to reveal how many children are being held at the Kent Intake Unit, how many who were held have been placed in the care of local authorities, and how long those held have been there.
Since June 4, more than 100 children have been transferred outside Kent and more are due for transfer this week under the national transfer scheme, but it is not clear if any of these children have been transferred from the Border Force Intake Unit.
The Home Office also suggested the children had not had access to social workers, saying it was “in discussions with local authorities” to provide these arrangements “imminently”.
They are getting support from the Refugee Council’s children’s advice project, which helps them access legal representation and education, and accompanies them to asylum interviews, appeal hearings and appointments with the health service and social services.
A Home Office spokesperson said: “Unaccompanied children arriving in Dover are cared for in the Kent Intake Unit (KIU), where they are prioritised and remain for the shortest possible period whilst the necessary welfare and security checks are undertaken, following which they are collected by a local authority and cared for by social services.
“The Refugee Council is currently providing support to vulnerable children arriving at KIU as part of their Children’s Advice project.
“Border Force officers do an amazing job and take the welfare of unaccompanied children extremely seriously, and we will continue to work tirelessly to target the people smugglers and organised crime gangs who exploit them.”
But Detention Action has argued that the law does not permit the children’s detention.
In the letter to Patel, solicitors from Duncan Lewis, acting on behalf of Detention Action, said: “So far as Detention Action understands, none of the children who have arrived in the UK by boat are those who are subject to removal, and certainly cannot be subject to removal until basic inquiries are made to ascertain the reason they have come to the UK but not the substantive details of any claim for protection.
“Detention Action therefore has significant difficulties identifying what lawful power that you have for holding the children at the Kent Intake Unit.”
Detention Action also accused Kent County Council of “unlawfully abdicating” its obligations under the law to provide accommodation for children in the area if they are either lost or abandoned, have no one with parental responsibility with them, or have no one to provide them with suitable care or accommodation.
The charity argued that the council also has additional duties to 16- and 17 year-old children to accommodate them “if not doing so would seriously prejudice their welfare”, as well as a power to accommodate under-16s “if it would safeguard their welfare”.
“These obligations owed by Kent County Council clearly arise in the context of unaccompanied children arriving in the UK,” the letter said.
“On the face of it, it appears to us that in refusing to take the children into its care, Kent is unlawfully abdicating its statutory obligation to care for children in need in their area and further putting the children at risk of harm to their welfare by causing them to be detained and deprived of their liberty in an administrative way without oversight.”
Detention Action said the council also has powers to transfer children to other local authorities if they first take the child in and make a transfer request.
“We fail to see why this process – directed precisely at dealing with pressures that a local authority in Kent’s position may face – cannot be used and why Kent considers it acceptable and lawful to abdicate non-derogable child safeguarding and protection obligations,” the letter said.
A spokesperson for Kent County Council said: “As it is a legal enquiry, it is now in the hands of our lawyers who will respond in due course.”
This article originally appeared on HuffPost UK and has been updated.