V. Failing to Protect the Most Vulnerable Children

Among the unaccompanied children detained at the airport transit zone are trafficked and asylum seeking children. Rather than screening for and protecting these children, French authorities treat them no differently than other irregular migrants. These children are thus at risk of being returned to their traffickers or to persecution in their home countries.

The Failure to Protect Trafficking Victims

Trafficking is the recruitment and transport of a person for the purpose of exploitation, which include sexual or labor exploitation.[129] French border police do not have any procedures in place to identify trafficking victims, whether among unaccompanied children or otherwise, and have failed to identify and protect them in detention and from deportation back to their traffickers.[130]

For example, Human Rights Watch documented two instances in which police attempted to deport two suspected trafficking victims without assessing the circumstances of their arrival, which might have indicated that they were trafficked. In the first case in April 2009, border police attempted to deport a 16-year-old Nigerian girl two days after her arrival despite the fact that authorities had justified doubts about the stated purpose of her travel.[131] Her first ad hoc administrator failed to object; although she told us she believed the girl was a trafficking victim and she had not established any contact with the girl’s parents, she said that she thought it was best for her to be sent back.[132]

The judge who reviewed the girl’s detention after four days extended her detention by eight days after the government’s lawyer argued it was in her best interest to be detained, since she would only abscond from care if released. The girl later told the ad hoc administrator that her trafficker visited her in detention and collected 1,000 euros from her. Police failed to inform the girl’s ad hoc administrator, who had also changed in the meantime, about the visitor.[133] The judge who reviewed her detention a second time after 12 days released her and she was placed in state care. At that point, according to her second ad hoc administrator who had requested the children’s judge to intervene and place her in state care, she was constantly trembling.[134]

In the second case, a 16-year-old Guinean girl traveled from Conakry to Dubai via Paris but was refused entry in Dubai and returned to Paris. French border police tried to immediately send her back to Conakry. They did not grant her the jour franc nor did they wait for her ad hoc administrator to arrive at the airport. The girl refused to board the plane. The girl traveled with an authentic diplomatic passport, which was not hers, and gave a range of contradictory statements before the judge about her parents’ whereabouts, names, and the purpose of her travel to Dubai. The judge who reviewed her detention after four days released her and she was put into local authority care.[135]

Ministry of Immigration officials as well as airport border police told us they had cases in which authorities intercepted traffickers or decided not to remove child trafficking victims. The officials, however, could not tell us how many trafficking victims had been identified and referred to protection in the past year. They were also unable to explain to us how they would protect victims from removal and admitted that victims might face deportation.[136]

Under French and international law, trafficking victims are entitled to protection that includes protection from deportation and temporary residence permits.[137] They may also be granted protection with temporary residence if they face inhuman and degrading treatment upon return.[138] However, victims are unable to access these entitlements if they fail to tell authorities that they are being trafficked and cooperate with asylum or law enforcement officials. The head of the border asylum procedure with the Office for Refugees told Human Rights Watch that trafficking victims almost never speak out and that its officers could do nothing in these cases even when they had strong suspicions.[139]

As will be discussed in the following sections, several factors make it unlikely that trafficking victims will be able to speak out and help law enforcement officials tackle criminal networks immediately after arriving in France: they are subjected to the stress of detention, trafficking victims may still be subject to influence or intimidation by traffickers; they may fear deportation; they are typically confused about the roles of the French Office for Refugees and the border police; and they are subject to a fast-track asylum assessment at the border (which are discussed below). 

Unaccompanied Children who Seek Asylum

Asylum-seeking children face barriers to filing and appealing asylum claims and seeking protection against return to persecution or inhuman and degrading treatment. Three children told us that police officers at the airport terminal either refused or were reluctant to register their claim.[140]For example, a 17-year-old boy told us that in early 2008 police threatened him with deportation after he asked to file an asylum claim:

[The police] called me to a desk. They took a picture of me and gave me a paper to sign. I said I would not sign. The police officer then said to me that I would be deported anyway no matter whether I signed. I said again I wanted to seek asylum but the police laughed at me and said ‘there’s no point doing that’ and that I would be deported anyway.

When he said that, that moment, I felt like killing myself. I had lived through so many things and always had the strength to overcome them and made all these efforts to save myself and had arrived where I believed to be finally safe. I felt like it all fell apart. I thought that if there is an opportunity to throw myself out of a window, I’ll do it.[141]

Two unaccompanied boys said border police failed to tell them about their right to seek asylum despite the boys telling police that they left their country because of political problems: “We said we wanted to stay in France—I didn’t know what asylum was.... We told the police that we had political problems.”[142] Two boys in contrast told us they had no problems filing a claim and said border police asked them whether they wanted to seek asylum.[143]

French Red Cross ad hoc administrators told us that they conduct their own preliminary screen and may decide not to file asylum claims on behalf of children. One ad hoc administrator, for example, told us that she was hesitant to file an asylum application on behalf of a child who did not fully understand its implications, while two other ad hoc administrators said they would suggest children to seek asylum if they had reasons for doing so.[144] While the UN Committee on the Rights of the Child recommends that children not be referred to the asylum procedure automatically and regardless of their circumstances,[145] Human Rights Watch is concerned that ad hoc administrators are not in a position to arrive at a meaningful evaluation of a child’s claim. French Red Cross ad hoc administrators displayed limited knowledge of asylum law. Their capacity is further hampered by the restricted interactions between an ad hoc administrator and the child in the transit zone, and the fact that their screenings are done almost immediately after the child’s arrival and while he or she is detained. All of these factors make it in our view not possible for ad hoc administrators to ensure proper evaluation of a child’s claim. Ad hoc administrators should as a standard practice facilitate the child’s access to the asylum procedure, including when the child faces return to a transit country.[146]

Fast-Track Asylum Procedure at the Border

Fast-track asylum procedures at the border are inappropriate for unaccompanied children because they are conducted immediately after children’s arrival and fail to take into account special circumstances for asylum seeking children. Unaccompanied children might be traumatized due to the reason for their flight, they might be stressed and anxious because of an absence of information, intimidating police behavior, or because they are detained. Asylum seeking children lack trust, reflection time, legal aid, and the necessary preparation in such an environment. All of these factors, individually and even more so when in combination, mean that children may not be able to convincingly or coherently articulate their claim, explain the reason for their flight, or even understand the implications of an asylum interview, which may negatively impact or even be used against them in the asylum interview itself. Although adult asylum seekers may experience many of the same difficulties, children generally have lower thresholds for withstanding such traumas and stresses and less capacity to overcome them.

Unlike for persons who seek asylum “in France,” the Office for Refugees does not make a final decision on whether a person who seeks asylum at the border is granted refugee status. Instead, it only checks whether or not a claim is “manifestly unfounded.”[147] If a claim is considered to be “manifestly unfounded,” the person remains detained and may be returned to a transit country or country of origin; if not so considered, the person is granted permission to enter France to deposit a claim under the regular asylum procedure.[148] The law thus requires only a preliminary evaluation of an asylum seeker’s motives at the border, yet it his hard to see how protection officers apply the criteria to determine whether a claim is “manifestly unfounded” without carrying out a full examination of a person’s case.[149]

Children told us they were confused about the difference between police and the Office for Refugees, that they were disoriented, had sleeping disorders, suffered from anxiety and were afraid of being deported, or that they were unaware of the implications of the interview.[150] A 17-year-old boy described how he felt before his asylum interview:

I went to bed. I got up at night and prayed. I was stressed. I was afraid they would call me to deport me. After I saw their attitude I lost all confidence in them. I didn’t sleep well.... I was alone in a room. It was an additional burden to be alone.... I never had the sensation before of being in a prison and I realized that then.[151]

A-16-year-old boy told us he had not even realized that he had gone through an asylum interview and described his fear of being deported as follows:

The [airport detention center] is very close to the airport so you are not okay until you are far from the airport. Whenever you see the planes you are thinking ‘it is my turn now.’ You see that they take other people for deportation. It is intimidating.[152]

The experience of two other boys who left their countries because of political problems but were not informed about their right to seek asylum illustrates how detention can impact a child’s capacity to present his or her case during an asylum interview:

We stayed in the same room. We were scared because we didn’t know what was happening.... We almost didn’t sleep in the transit zone. We didn’t sleep well.... I asked for a sleeping pill but they didn’t give me any. We were thinking all the time and talking. We were all the time thinking and had nobody-else to talk to.[153]

The French Office for Refugees has not conducted any special training for its police officers in adjudicating children’s claims, and the criteria for whether a claim is “manifestly unfounded” are applied to children equally as to adults. Because of the procedure’s expediency with protection officers making decisions usually shortly after the interview, there is an important risk of error.[154] The two following examples illustrate flaws in the fast track process.  

In early 2009, a 17-year-old girl who sought asylum at the border underwent medical exams that confirmed her allegations of sexual violence. Asylum officers for the French Office for Refugees interviewed her over the phone, initially with other detainees present. Her ad hoc administrator arrived after the start of interview, interrupted the interview, and demanded a confidential setting. He was also concerned that the circumstances of her arrival suggested she might be a trafficking victim.[155] According to her ad hoc administrator, the girl was unable to remember the names of some places in her region of origin and also could not correctly remember the chronology of certain events.[156] The French Office for Refugees recommended that her claim be rejected. The ad hoc administrator believed that the uncontestable evidence of abuse had not been given adequate weight, nor had proper account been taken of the fact that inconsistencies or gaps in her story could easily be explained with her past trauma and the circumstances in which the interview was conducted.[157] After the initial negative decision, her ad hoc administrator appealed to the minister of immigration for permission for her to enter France on exceptional grounds, which was granted.[158]

Similarly, in early 2008, the French Office for Refugees based the rejection of Daniel S.’s asylum application at the border on inconsistencies in his story and the boy’s lack of geographical knowledge.[159] The boy did not have an ad hoc administrator and thus received no preparation about what to expect and the importance of the interview. He told us that his anxiety in detention and the great pressure he felt before the interview, resulting in part from the police’s threat to deport him and initial refusal to register his claim, affected his ability to communicate his story. His lawyer also told us he did not have the necessary confidence and trust to speak about the persecution he faced and was unable to communicate relevant information during his interview.[160]  He described his reaction after the negative decision as follows:

The reason they gave [in the rejection] was that I had little knowledge of that region.... and that my claim was not really founded. I was furious and laughed at the same time when I saw that. With all the stress I was in during the interview I hardly understood what was happening. It made me laugh to be told I didn’t know my region. Some of the questions [during the interview] I did not want to reply to. I did not realize the importance of these questions. Also.... I didn’t realize that I had to speak about all these details. I did not talk about some things because I assumed the other person would understand nevertheless.[161]

His claim was rejected but he was released from airport detention by the liberty and detention judge. Once in France, he filed a regular asylum application, was prepared and assisted in the interview, and was granted refugee status after several months.

One additional factor that may negatively influence children’s communication of their story is the fact that the distinction between the role of the French Office for Refugees and that of the border police is not always clear to children. The border police, who are viewed by children as their jailers, register an asylum application. Protection officers with the Office for Refugees conduct the asylum interview and assess children’s claim. However, the room in which the interview takes place is guarded by police officers and the actual decision is communicated to the asylum seeker by the police. It is unsurprising that asylum seeking children felt there was no difference between the two institutions. A boy who was 16 at the time he arrived told us he was convinced that the two bodies worked hand in hand.[162]

I had several interviews [with police and for the asylum claim]. They always asked the same ‘what my problems were’, and ‘where I came from.’ I am convinced they asked the same questions to verify whether I said the truth.... I’m sure this was the case.[163]

Obstacles to Filing an Appeal

Children face numerous obstacles to appealing against a negative asylum decision. Ad hoc administrators are not present when police communicate a negative asylum decision and thus are unable to verify whether children are informed of their right to file an appeal.

Ibrahim F., a 16-year-old unaccompanied boy told us he tried in vain to appeal against a negative asylum decision: “I couldn’t make an appeal [to my negative asylum decision]. I received the decision two days ago. I went to office 38 but they told me they couldn’t make an appeal for me.”[164]

As noted previously, under French law children lack the legal capacity to file appeals or to appoint lawyers by themselves. Ad hoc administrators therefore must approve lawyers’ interventions on behalf of children they represent, including appeals against a rejected asylum decision.

French Red Cross representatives and ad hoc administrators told us they may not file appeals if they consider a child’s story not convincing, when the child’s profile does not meet protection criteria, or when it is not in the best interest of the child.[165] One ad hoc administrator for example told us when we asked whether an appeal was filed on behalf of an asylum seeking boy: “[the boy]had a very vague story, with nothing to justify an asylum application. For an appeal it’s necessary to have elements justifying the appeal.”[166] It was rare, a French Red Cross representative told us, that its ad hoc administrators would not agree with the opinion of the French Office for Refugees, but that they would never automatically follow the government’s views.[167]

While the French Red Cross has lodged some appeals against decisions refusing asylum to unaccompanied children, the number of appeals lodged are remarkably low. Since the law providing for a suspensive appeal for asylum seekers came into effect in November 2007, the Red Cross only lodged two appeals, in 2008, despite more than 180 negative asylum decisions that year. During the first nine months of 2009, no appeals have been lodged. None of these appeals was successful.[168] 

In explaining the low level of appeals lodged, the French Red Cross explained to us that an appeal against a negative asylum decision was only one among other legal options, such as an alert to the children’s judge or the children’s prosecutor. For example, according to the French Red Cross, about 75% of all children are released from detention and permitted to enter France after the liberty and detention judge’s review and that there often is sufficient time to wait for the outcome of that review before filing an appeal. Yet, Ibrahim F., the boy who in vain tried to file an asylum application and was at risk of being returned to Algeria, a country he transited on this way to France, was not assisted to file an appeal by his French Red Cross guardian even though the liberty and detention judge extended his detention.[169]

While the need to file an appeal is indeed redundant after the liberty and detention judge releases the child from airport detention and grants him or her access to France, a significant number of children, including those who seek asylum, are not released but sent back to the airport detention center after judicial review of their detention. In those cases, appealing a negative asylum application is the only remedy that blocks the child’s forced return, as an alert to the children’s judge does not suspend the child’s deportation. The low number of appeals filed altogether indicates that this legal remedy is used very restrictively by the French Red Cross and that their default position is not to appeal.[170]  

Besides filing a very low number of appeals, in a few cases the French Red Cross has blocked lawyers working for Anafé from filing appeals on behalf of children. In the first half of 2009, according to Anafé, it blocked two such appeals.[171] Red Cross representatives told us that they blocked these appeals because they were not in the child’s interest or not justified. They stressed that they did not have a policy against filing appeals but made these decisions within their mandate of representing the interests of a child who does not have the legal capacity to make such a decision or to appoint a lawyer. The French Red Cross appears to be alone in this practice: according to ad hoc administrators working for the non-governmental organization “Famille Assistance,” they never block appeals of negative asylum decisions.[172]

Blocking an appeal of a negative asylum decision in our view represents a failure to carry out the ad hoc administrators’ mandate and is a violation of a child’s right to appeal. Although this appears to have been limited to a few cases only, by doing so ad hoc administrators have acted outside their authority as children’s guardians and have assumed the role of judges. The right to challenge a negative asylum decision is a fundamental safeguard against protection from risk of ill-treatment, harm, danger, and inhuman or degrading treatment in case of return.

That a child’s story is not convincing upon a first hearing may be due to numerous factors including trauma from past abuse, the stressful environment in the transit zone, influence by smugglers and traffickers, lack of confidence in authorities or ad hoc administrators, or simply a lack of preparation for the asylum interview. Given the limited training ad hoc administrators receive, the erroneous understanding of asylum they demonstrated in interviews with Human Rights Watch[173], and the limited interaction with the child they are able to have, they are neither in a position to understand a child’s reason for migration or to determine whether a return is indeed in the child’s best interests. The UN Committee for the Rights of the Child stresses that a determination of what is in a child’s best interests  requires a clear and comprehensive assessment and must be documented before making any decision that fundamentally impacts an unaccompanied child’s life. The committee adds that allowing the child to access the territory is a prerequisite for such a determination.[174]

It should also be noted that the drafting of appeals is laborious, subject to tight deadlines, and an extra task added to an already intense workload for ad hoc administrators.[175] The fact that appeals may be dismissed on procedural grounds unless they are well-substantiated, and that ad hoc administrators are often over-burdened and may be under-qualified, and often are on assignments only for short periods, may also discourage them from filing appeals.

Under the UN Convention on the Rights of the Child, governments are bound to provide protection and humanitarian assistance to refugee children and those seeking asylum.[176] The United Nations High Commissioner for Refugees has called on governments to grant unaccompanied asylum seeking children access to their territory, to consider their claim under the regular refugee determination procedures, to provide them with a lawyer, and to refrain from detaining these children.[177] The UN Committee on the Rights of the Child has added that staff involved in status-determination procedures of children should receive relevant training and that “the child should be given the ‘benefit of the doubt’, should there be credibility concerns relating to his or her story as well as a possibility to appeal for a formal review of the decision.” As a procedural safeguard, an asylum seeking child should be represented by an adult familiar with the child’s background and competent to represent his or her best interests and the child should in all cases be given access to a qualified lawyer.[178]