An Afghan policeman guards the site of a suicide attack on a Shia shrine in Kabul on Tuesday. The UK government wants to return Afghan teenagers from Britain. Photograph: Keystone USA-Zuma/Rex Features
Last year the Home Office received 547 applications from Afghan children separated from their families wanting to stay in the UK. As of next year the government wants to start sending them back to Kabul.
"It is hard to see how any of them can lawfully and safely be sent back while Afghanistan remains a death trap for lone children," says Francis FitzGibbon QC, part-time immigration judge and a barrister at Doughty Street Chambers.
At the start of the year the Netherlands, Norway, Sweden and the UK joined forces to establish the European return platform for unaccompanied minors overseen by the Swedish migration board to enable the return journey for Afghan teenagers.
At the moment, unaccompanied asylum-seeking children from the war zone are not removed from the UK before they reach their 18th birthday.
"No minor will return home without a safe and orderly reception," promises the project, adding that its objectives are "to develop methods and contacts in order to find the parents of the minors who shall return home but also to find safe and adequate shelter in the country of origin".
FitzGibbon notes that until it becomes known precisely what such arrangements are "no one can say if they will be 'adequate' to overcome or at least mitigate the suffering that lone children will go through in Afghanistan.
"In a country where welfare and life itself are so dependent on family and kinship, and where civil society is so threatened by extreme violence, it is difficult to see how a stable and durable alternative can come into being."
Others agree. Alison Harvey, general secretary of the Immigration Law Practitioners Association, points to this year's supreme court ruling in the case of ZH (Tanzania), which concerned the planned removal of a mother of two children (British citizens) to Tanzania.
It considered her rights under the European convention on human rights; the UN version; and the effect of the Borders, Citizenship and Immigration Act, whereby the UK Border Agency has "to safeguard and promote the welfare of children".
"The test is clear," says Harvey. "Afghanistan is a war zone and prima facie of sending children back to a situation like that is not in their best interests."
ZH was referenced in the ruling of the appeal judges last week in the case of MA, BT & DA v SSHD, which considered whether it was unlawful to send unaccompanied minors back to other EU countries under what is known as the Dublin law. This law covers the right of EU countries to remove migrants back to the country in Europe in which they first arrived.
The government should "now take the sensible decision to end the practice of threatening children with removal" under the Dublin regulations, says Donna Covey, chief executive of the Refugee Council.
The government would never send a British child to a country where their care conditions were unknown, leaving them at risk of exploitation or poverty and so Covey asks: "Why do they believe it acceptable for refugee children in their care?"
She adds: "The courts should not have to keep reminding the UK government of its international obligations, particularly where children's safety and wellbeing are concerned."
It is not just the government that is to blame for failing such vulnerable children, a point made in a recent Refugee Council report by the Refugee Council.
It shines an unforgiving light on the quality of legal representation and advice available for separated children lucky enough (or not) to find a lawyer.
Take, for example, the 17-year-old coming to terms with having witnessed the extrajudicial execution of his father by government forces and the drowning of his mother and brother as they fled. He formally identified their dead bodies.
Before arriving in the UK, the teenager was imprisoned. He was lucky enough to find a lawyer but not lucky enough to find one sufficiently attentive to draw attention to his obvious trauma when making his asylum application.
If it was not for a Refugee Council adviser the teenager would not have been referred to the Helen Bamber Foundation where he was assessed and found to be severely traumatised.
According to the report there was an insufficient number of high-quality legal representatives and a worrying number whose knowledge of law and policy was woefully inadequate.
Lawyers are not so much dodgy as irresponsible, says Judith Dennis, advocacy officer at the Refugee Council. "They are taking on great responsibility when they are instructed by child."
Asylum claims are to be spared under the savage government cuts under the legal aid bill.
But the general erosion of the legal not-for-profit sector's financial basis means the chances of children finding decent lawyers is going to be increasingly difficult.
Refugee and Migrant Justice was forced to close its doors on 10,000 asylum seekers – including 1,000 children.
The largest remaining charity, Immigration Advisory Service, picked up many of those cases only to call in the administrators earlier this year.
Jon Robins edits thejusticegap.com
