Processing Applications for Admission for Refugee and Asylum Seeking Children
We know that many of our client schools want to open their doors to refugee and asylum seeking children from the Ukraine and beyond.
In this article, we explore how schools must process applications for the admission of these children in a way which is consistent with admission law and the School Admissions Code 2021 (Code).
The starting point is that all applications for admission (including those for refugees and asylum seekers) must be processed strictly in accordance with admission law and the Code which, in the case of applications made in the normal admission round and in-year applications, means applying the criteria set out in the school's determined admission arrangements which have been published for that intake and included in the Local Authority's consolidated prospectus.
As at the date of this article, the admission arrangements for the September 2022 and 2023 intakes have already been determined and published, with the admission arrangements for the September 2024 intake due to be determined on or before 28 February next year (with consultation on any proposed changes taking place before 31 January next year).
We know that some schools with no places available have nevertheless been encouraged to admit refugee children despite being full following receipt of an in-year admission application. Although there is no doubting the good intentions behind this, unfortunately this may not have been lawful.
If a school has no places available and has a waiting list (which must be ranked in accordance with the schools determined oversubscription criteria), then it is not possible for an applicant who is a refugee to essentially 'leapfrog' over higher ranked applicants on the waiting list and be offered a place, when others on the waiting list haven't. Even if the school does not maintain a waiting list for that year group, if previous in-year applicants have been refused (particularly those ranked higher under the oversubscription criteria), making a subsequent decision to offer a place over PAN to a refugee applicant will open the door to the possibility of challenge by those unsuccessful applicants.
This does not, however, mean that refugee applicants cannot be admitted over PAN when other applicants have been refused - it is simply a case of being clear about the legal route for that admission so that the school can withstand scrutiny if challenged.
Paragraphs 3.14 to 3.22 of the Code set out the legal rules governing Fair Access Protocols (FAPs) which all Local Authorities must have in order to quickly find places for children who are "vulnerable and/or hard to place children, where they are having difficulty in securing a school place in-year, and it can be demonstrated that reasonable measures have been taken to secure a place through the usual in-year admission procedures". These FAP placements take place outside of the school's published admission arrangements, with no reference to the criteria contained therein, with these children taking priority over applicants on the waiting list.
Paragraph 3.17 sets out an exhaustive list of the categories of children who are eligible for placing under the FAP where they have been unable to secure a place through the usual in-year procedures. Paragraph 3.17i) includes "refugees and asylum seekers".
What this means is that, where an in-year application for admission has been refused (which must be on the basis that there are no places available within the PAN in the case of entry years, and that the admission of an additional child would prejudice the provision of efficient education of others and/or the efficient use of resources in the case of all other years), and written notification stating the reasons for the refusal, and giving information about the statutory right of appeal, has been sent to the parents, the school can also make a referral for placement under the FAP as an eligible child.
There are rules that must be followed when placing children under the FAP which are set out in the paragraphs referred to above, but this could potentially lead to the child being placed at the school under the FAP, not under the admission arrangements, and with them taking priority over applicants on the waiting list.