VI. Deportations without Safeguards

In 2008, out of approximately 1,000 unaccompanied migrant children who arrived to Roissy Charles de Gaulle airport, 341 children were deported from France or continued their journey to an onward destination, all others were granted permission to enter France.[179] According to the French Red Cross, at least 25 to 30 children they represented were deported to countries they only transited, although the director of the airport border police assured us that this practice did not take place.[180] From January to May 2009, out of 265 unaccompanied children who were held in the transit zone, 51 children (19 percent) were deported, whereas 200 were granted permission to enter France.[181] The fate of 14 unaccompanied children remains unknown to us and we also do not know how many of these children were deported to countries they merely transited.

French law makes no distinction between adults and unaccompanied children when it comes to return: children like adults may be returned to countries they merely transited and with insufficient safeguards to protect them from harm.[182] Airport border police told us that even though the interest of the child is of concern to them they have used the strategy of sending children “to send a signal to smuggling networks,” and to “show a firm will against further arrivals.” They added that their migration control measures served not solely the interests of France but also those of the European Union.[183]

In a particularly egregious example, in November 2008, border police wanted to deport an unaccompanied five-year-old Comorian boy to Yemen, his last country of transit, and hand him over to local police. According to court documents, they had no agreement with Yemeni police to take care of him, nor was there any guarantee that the boy would be safe while in the custody of Yemeni officials, or that local officials would safely reunite him with his family, whose whereabouts remained unknown at that time. The liberty and detention judge released him following the police’s explanation of how he would be returned, and he was referred to local authority care.[184]

In May 2009, border police made multiple attempts to deport a 16-year-old Chadian boy to Egypt, his last country of transit. They also attempted to deport a 17-year-old boy from Egypt on a plane to Antananarivo , Madagascar, which was again the boy’s last country of transit. At that time, in mid-March 2009, Madagascar was at the edge of a civil war. The government also acknowledged during a court hearing in May 2009 that it intended to deport two Lebanese boys, ages 14 and 16, to Algeria, their last country of transit.[185]

Ministry of Immigration officials told us that French liaison officers (in charge of migration control or security) in various countries are contacted before a child is returned to meet the child upon arrival. They explained though, that these would then hand the child over to local security officials.[186] The transfer of an unaccompanied child to security personnel, in either the child’s country of origin or a country the child merely transited, provides no guarantees for the child’s safety. On the contrary, Human Rights Watch and other organizations have consistently documented, for example, how unaccompanied children returned to Morocco and handed over to security forces are routinely subject to abuse and detention.[187] Moreover, given that liaison officers are not present in all countries and that unaccompanied children may be returned within a few hours only after their arrival, it seems unlikely that returned children are met in all circumstances. 

Both the French Red Cross and Anafé have raised concern over the treatment of unaccompanied migrant children who try to enter France while transiting through Charles de Gaulle with a ticket to an onward destination. Many of these children are of Chinese origin and possess tickets to Latin American countries, such as Mexico and Cuba. Airport border police told us that, even though they understood that the objective of some children in fact was to enter France while on transit, they would make sure these children reached their final destination and prevent them from remaining in France.[188] Such action, even though presented as assistance to children in transit, in reality may in most cases be nothing else than deportation to third countries with no prior securing of their care and protection. As ad hoc administrators cannot be present to represent children’s interests in these situations, the children are left without safeguards and access to protection.

The law allows for criminal charges to be brought against migrants who refuse to be deported, including against unaccompanied migrant children.[189] In 2008, 11 unaccompanied children were placed in police custody for refusing to board the plane. A 16-year-old boy who repeatedly refused to board a plane was put into police custody in spring 2009. He later was released and put into state care.[190]

Children appear not to be spared from police violence during deportation attempts and there have been allegations that border police in isolated cases have used illegitimate force or intimidation to ensure children’s deportations. Staff of Anafé informed us that a boy who was subject to six deportation attempts alleged that police became violent during the third attempt to return him and showed them wrist injuries from handcuffs.[191] One ad hoc administrator also told us that border police threatened a 14-year-old boy that they would cancel his mother’s residence permit unless the boy agreed to his removal.[192] Such accounts in most cases would be unlikely to come to light because all contact is usually lost after a person’s removal.

International Obligations when Returning Unaccompanied Migrant Children

When returning unaccompanied migrant children, France’s legal obligations under the UN Convention on the Rights of the Child, the European Convention on Human Rights, the Refugee Convention, and the UN Convention against Torture apply. These conventions apply wherever the state exercises jurisdiction, which includes the airport transit zone.

Under the Refugee Convention, France is bound by the principle of non-refoulement, which prohibits the return of person to a place where he or his or her life or freedom would be threatened on account of nationality, race, religion, political opinion, or membership of a particular social group.[193] The principle of non-refoulement is furthermore enshrined in the European Convention on Human Rights and the Convention against Torture. The latter treaty prohibits France from returning a person to a place where he or she faces torture; the former also prohibits the return to a place where the person faces a risk of inhuman or degrading treatment.[194]

Under the European Convention on Human Rights, the government not only has to refrain from sending children back to inhuman and degrading treatment, it must also take positive steps to foreclose the risk of such treatment before deciding to return an unaccompanied child. For example, the European Court of Human Rights (ECtHR) held that Belgium acted in violation of these obligations when it deported a five-year-old unaccompanied girl to Congo: “Belgian authorities did not seek to ensure that [the child] would be properly looked after or have regard to the real situation she was likely to encounter on her return to her country of origin.”[195]

The ECtHR obliges the government to take “requisite measures and precautions” against inhuman and degrading treatment when it returns an unaccompanied child.[196] The circumstances of what constitutes inhuman or degrading treatment for an unaccompanied child may differ significantly from that of adults. As shown in the case of the five-year-old Congolese girl, her deportation without any prior assurance of her care was considered to amount to inhuman and degrading treatment.[197] Other situations that may rise to inhuman and degrading treatment and ought to be considered before returning a child include: the risks that trafficking victims will fall back into the hands of criminal networks, and the risks for children who fled their families due to domestic violence will be returned to an abusive situation.

In Nsona v. The Netherlands, which also involved the forced removal of an unaccompanied child, the ECtHR established states parties’ responsibility under the European Convention on Human Rights prior to removing the child:

The responsibility under Article 3 in cases of this kind lies in the act of exposing an individual to the risk of ill-treatment, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting States at the time of the expulsion.[198]

The handing over of children to security forces in a third country or the child’s country of origin with no guarantee that these children will be taken into care or safely reunited with their families may put the child in danger and at risk of inhuman and degrading treatment. Due to the speedy removal procedures at the airport and the difficulties to establish a relationship of trust with the child in a detention environment, conditions are not given for a risk assessment in case of return, and the child’s safety upon return therefore cannot be guaranteed.

Under the UN Convention on the Rights of the Child, states are furthermore obliged to provide protection and care for unaccompanied children and to take into account a child’s best interest in every action affecting the child.[199] Before returning an unaccompanied child to either a transit country or country of origin, authorities should seek information on whether the child faces abuse or the violation of fundamental rights and whether care arrangements exist for the child, and take that information into account for a comprehensive assessment of the child’s best interest. The Committee on the Rights of the Child established a list of criteria that should guide authorities’ assessment. These include considerations about the child’s safety and security upon return, socio-economic conditions, as well as the views of the child.[200]  

Children furthermore enjoy procedural guarantees when faced with a removal order. Under the European Convention on Human Rights they must have access to an effective remedy if deportation risks violating any of their rights under that convention.[201] Children who are without legal representation or those who are assigned an ad hoc administrator but deported before meeting their representative are by law or de facto deprived from accessing an effective remedy. Children who are arbitrarily prevented by their ad hoc administrators from filing an appeal against a negative asylum decision are equally left without access to an effective remedy.

Ultimately, authorities should identify a lasting solution for the child, heeding the child’s best interests and taking into account his or her views. A durable solution may be achieved through family reunification in the country of origin or a third country. But when family reunification or return to the country of origin are not possible due to legal obstacles or because they are not in the child’s best interests, states are to facilitate the child’s integration into the host country through refugee status or other forms of protection.[202]