By Simone Troller

One might have thought that in Western Europe, where child mortality is close to zero, education and healthcare a given, and social services and institutions well developed, children's rights would be one of the most uncontroversial topics for policy-makers. Not, it seems, when the children in question are unaccompanied migrants.

All too often the thousands of unaccompanied children arriving without parents or caregivers find themselves trapped in their status as migrants, with European governments giving little consideration to their vulnerabilities and needs as children. Many end up without the humane treatment Europe claims to stand for. Instead they may face prolonged detention, intimidation and abusive police behavior, registration and treatment as adults after unreliable age exams, bureaucratic obstacles to accessing education, abuse when detained or housed in institutions and, too often, exploitation.

Compounding this, many suffer from a pervasive lack of legal defense that leaves them unable to claim their rights. They may be prevented from seeking redress in case of ill-treatment, from challenging their detention, from appealing a negative asylum decision, or simply from appointing a lawyer to protect their rights.

Unaccompanied migrant children represent a tiny fraction of all migrants entering Europe, and governments are unable to present reliable data.[1] Yet, officials across the continent speak about a "mass influx" or "avalanche" of children. Unsurprisingly, these children have now become the focus of regional concern, not least because they are perceived to be a resource burden.

Deliberate Legal Gaps

Within a given country, unaccompanied migrant children are typically dealt with under two different and often contradictory sets of laws: immigration legislation and child-protection legislation. All too often, authorities resort to immigration legislation first and child-protection second, which has direct and dire consequences for children.

France presents one of the worst examples of what happens when unaccompanied migrant children are dealt with primarily as irregular migrants. It maintains extra-territorial zones, the biggest at Roissy Charles de Gaulle airport near Paris, where unaccompanied migrant children are treated as if they had not entered France. Inside these zones, they are subject to a different legal regime. In practice, the legal fiction that they are not in France means they have fewer rights.

Up to 1,000 unaccompanied migrant children per year end up in the legal bubble of the Roissy Charles de Gaulle airport transit zone, a zone that goes well beyond the immediate surroundings of the airport to include places as far as 20 kilometers away, and which can be extended at authorities' discretion. The purpose of that transit zone is simple: to insulate migrant children from the rights they would be accorded on French territory, thereby greasing the legal skids for their speedy removal from France.

Speedy removal includes removing these children to countries they merely transited on their journey to France. For example, French authorities attempted to deport a Chadian boy to Egypt, an Egyptian boy to Madagascar, and in 2008 contemplated the removal of a five-year-old Comorian child to Yemen. Some of these children resisted their deportation and risked police custody and criminal charges as a result. Those who were removed-around 30 percent of all children who arrived-almost always left without any record of what happened to them.[2]

Systems that prevent unaccompanied migrant children from accessing their rights in Europe are not necessarily the result of sophisticated legal regimes. Legal gaps that either target unaccompanied migrant children-or hit them as "collateral damage"-may be blunt and discriminatory. European governments have all signed the main United Nations treaty protecting the rights of children, the Convention on the Rights of the Child (CRC). Still, some have excluded migrant children from entitlements otherwise granted to children through reservations and declarations to the CRC that give deference to immigration legislation. In other words, children are first considered migrants, and only secondly children.

For years the United Kingdom was criticized for excluding migrant children from the full entitlements under the CRC due to their migration status until it lifted the reservation in 2008, announcing its move days before the United Nations was set to evaluate its children's rights record.[3]

Germany has a similar declaration, filed in 1990 by the federal government. While saying it does not object to withdrawing the declaration, the federal government argues it is powerless to lift it, despite explicit requests by parliament, because, it claims, several of the 16 German states object. Whatever it says, there are other signs that the government itself is reluctant to end the discrimination against migrant children: it argues, for example, that ending the reservation could act as a "pull-factor" leading to the arrival of large numbers of migrant children and create unpredictable costs.[4] Meanwhile, in Germany the declaration continues to have serious consequences for unaccompanied children who seek asylum. From age 16 these children may not be assisted by a guardian or lawyer when going through the complexities of an asylum procedure, and have to stay in reception centers with adults.

Perhaps the most egregious regime for children treated as irregular migrants is to be found in Greece, one of the major gateways for migrants into Europe. Children spend months in detention centers-often in the same cell with adults-in conditions that a European rights body termed "unacceptable."[5] Released from detention, they are served an order to leave the country. If they do not, they may find themselves back in detention, no matter how vulnerable they are. Even outside detention they are far from protected. Greece offers a mere 300 places in reception centers, which are full, for an estimated annual arrival of 1,000 children. With no safety net, even for trafficked children and others most at risk, they can end up in a daily struggle for survival and in a vicious cycle of exploitation.[6]

Government Coordination, or How to Pass the Buck

The fact of two sets of legislation applying to unaccompanied migrant children means that at least two government bodies are in charge of them. One would like to think this might mean double assistance and protection. But the reality is that children fall through the bureaucratic cracks. Social policy ministries and interior or immigration ministries, the two types of bodies typically in charge, have inherently different approaches.

Greek police officials, for example, pointed out to Human Rights Watch that they cannot release migrant children from detention because no other accommodation is available. Yet the Ministry of Health, responsible for providing care centers for these children, claims there is no need for more reception facilities since many children abscond shortly after their admission, a circumstance that should be worrying in itself. With both bodies pointing fingers at the other, neither takes responsibility for the children; the deadlock contributes to children's prolonged stay in detention.

Even when the overall number of unaccompanied migrant children in a given country may not be that significant, their presence can put a considerable burden on entry point regions, such as the Canary Islands in Spain, or the department of Seine-Saint-Denis in France which has Roissy Charles de Gaulle airport on its territory. When the primary responsibility within a country is devolved to regions, the central state, although bound by international law to make sure all children in the country can access their rights, may shirk responsibility by hiding behind such administrative arrangements.

The Canary Islands, by geographical circumstance is a first landing point for migrants from West Africa, Morocco, and Western Sahara, saw about 1,000 unaccompanied migrant children arriving at its shores in 2006. It rushed to set up emergency shelters in industrial sites and reopened a previously closed detention center to house several hundred children. Then it demanded that the government in Madrid take in or redistribute all but 300 children, its self-declared maximum capacity. The central government organized and paid for some children's transfer to other regions, but ongoing arrivals kept numbers stable and few other regions offered to accept children. While Madrid gradually withdrew its engagement, the temporary and substandard shelters turned into the children's permanent residences. Even when Human Rights Watch confronted Madrid with findings that children had been abused and continued to face risks in these centers, the central government maintained that it was powerless over the situation. The Canary Islands responded similarly, saying these centers would be closed as soon as the central government accepted responsibility for the children. So the buck kept being passed, with children left unprotected.[7]

Worse Off than Adults

Because migrant children are underage, many governments deem them incapable of making important decisions. As persons considered legally incapable, they are assigned a guardian (a person or institution) that is mandated to decide all matters on their behalf. Guardianship is intended to safeguard children's interests especially because children tend to be unaware of their entitlements. In reality, however, guardians too often are ineffective, lack the necessary powers or expertise, or worse, do not challenge government action and as a result fail to serve children's best interests. Children in these cases not only bear the full brunt of tough migration policies, but stripped from decision-making, they are even worse off than adults.

France, for example, provides that every unaccompanied migrant child arriving at Charles de Gaulle airport be represented by a guardian. Yet the role of these guardians may be redundant. If for any reason no guardian is available, or the guardian arrives "too late" to meet the child, this does not prevent authorities from detaining and deporting children. In 2008 around 30 percent of children never met with their appointed guardian, often because they were deported before their representative arrived. Yet, without that guardian, children cannot legally challenge their detention or deportation, as they are themselves considered "incapable" to file legal acts or even to appoint a lawyer. So the absent guardian turns into an obstacle that prevents the child from escaping his or her legal limbo.

Children may be powerless to object to guardians who do not act in their interest. Spain deported unaccompanied migrant children to Morocco until 2008 on the assumption that the child's return was in his or her best interest. Government institutions acted as the child's guardian, but officials did not consult with the child and they ignored consistent reports of children's ill-treatment and detention upon return.[8] Children, in turn, were unable to challenge their deportation. To do so, they would have needed their guardian, who initiated the decision in the first place, and therefore was not going to challenge it. The Spanish government fought hard to keep the system that way, tried to block lawyers from representing these children, and demanded the guardian's exclusive power in all decision-making over the child. Spanish national courts, in dozens of rulings that suspended governmental deportation orders, for the time being, put an end to this shameful practice.[9]

In Greece, children Human Rights Watch spoke to in 2008 and 2009 were unaware they had a guardian-and guardians were unable to tell us how many children they represented. Police in some cases did not even bother to inform guardians about a child's existence. In such situations, children below age 14 are barred from accessing the universal right to seek asylum because they need a guardian to do so. For example, a 10-year-old unaccompanied girl from Somalia who Human Rights Watch met in June 2008 could not file an asylum application because of the dysfunctional guardianship system. She remained an irregular migrant instead, and Greek police detained her multiple times.[10]

The Returns "Solution"

As European governments struggle with their response to unaccompanied children on their territory and the responsibility and costs they generate, the instinct of some European Union member states is to find a cheap and easy solution: the child's return. While return is only one of several possible lasting solutions for a child, it is too often the solution governments immediately favor, with little consideration as to whether repatriation is in the child's best interests.

In sending countries where social services barely exist and family tracing and reunification remains difficult, some European host governments are attracted by the idea of building reception centers to which they can swiftly return unaccompanied migrant children. International law does not forbid the child's return to a care institution in the country of origin, but it allows it only when it is in the child's best interests. It remains questionable to what extent the return to an institution is in the child's best interest when, for example, it is far from his or her family and local community, and when it is used as a way of ensuring the child's fast removal rather than the search for a permanent solution.

Investing in such a way in the returns of children may not only be a waste of money, with those returned leaving their countries soon again, but it may also put children back at serious risk. The construction of model care centers in countries where services for children are absent or inadequate may also have an unintended side-effect: they create disparities in countries of origin and could draw children into migration as the only way to get services that would not be available if they stayed home. Instead of seemingly quick and easy solutions that focus on returns, investments into services and institutions accessible to all children in their home countries are needed.

Finally, European governments are not simply off the hook once the child is returned. They are directly responsible if the child is ill-treated, detained, or disappears upon arrival if they ignored relevant information before returning a child and did nothing to mitigate such risks. The European Court of Human Rights' condemnation in 2006 of Belgium for returning a five-year-old unaccompanied Congolese girl by dumping her at Kinshasa airport was a much needed signal that such action is held to account. In a decision concluding that Belgium demonstrated "a total lack of humanity," the court maintains that governments are obliged to take "measures and precautions" against the inhuman treatment of a returned child.[11]

Enter the European Union

It is positive that the EU wants to address the situation of these children in the Stockholm Program, its five-year asylum and migration strategy, starting with an action plan in 2010. EU policy coherence and action is needed in light of legal provisions that require governments to remove a trafficking victim under one set of laws, and to protect the victim under another set. Additionally, EU legislation does not address the needs of those children who never file an asylum application-possibly a majority-including the needs of those who cannot file a claim because of practical or legal obstacles.[12]

The EU should be cautious, though, and make sure that before adopting an action plan it takes the time to understand the complexities behind children's migration and informs itself on the basis of existing and, where necessary, additional unbiased research. It should avoid falling back on myths and false pretexts put forward by some member states. Those include that detaining children protects them from traffickers, or that intercepting (and returning) migrants before they reach European soil prevents the unnecessary deaths of children. The EU should also avoid repeating broad generalizations that the best place for a child is always with the family, or that better services and laws in Europe will only lead to more children arriving.[13] Not only are such arguments dangerous and unsubstantiated, but they inevitably open up a race to the lowest standards and undermine the ultimate goal of better protection. The EU should also refrain from using its political and economic weight to put undue pressure on countries of origin to take children back.

Instead, the EU should ensure its policies and actions are truly rights-based and treat these children first and foremost as children, and not on the basis of their migration status. It should help member states adopt sound and transparent procedures to guarantee every child a fair, comprehensive, and individualized assessment that leads to a lasting and beneficial solution. All options for a child's durable solution should be considered on an equal basis, including the possibility of the child's stay in the host country, or transfer to another EU member state to join close relatives (such as siblings), alongside return to country of origin. The primary factors in such decision-making should be the child's best interests, informed by a number of elements including the child's personal history and his or her views.

The EU should put forward standards to ensure that children enjoy better safeguards, can defend their rights, and are able to challenge government decisions with the help of guardians and lawyers when they face detention, deportation, or go through an asylum interview. These standards should require guardians' to possess expertise on migrants and children's rights, undergo regular training, be independent from the body deciding on a child's return, and to be subject to independent review. Guardians who have a conflict of interest in representing the child should be excluded from taking on such a role. Guardians also need to be given the mandate and the power to represent the child's best interests, and they need to have a say in all decision-making, including decisions regarding a child's detention or deportation. Furthermore, in all administrative and judicial decisions children should be represented by lawyers in addition to guardians.[14]

Current methods to determine the age of a child are another area where EU guidance can make a positive contribution. Because some governments predominantly use unreliable age tests based on medical examinations only, an unaccompanied child risks being arbitrarily declared an adult. Minimum safeguards to prevent such scenarios include that the error margin in these examinations is acknowledged, that the child and guardian consent to the exam, and that the child is given the benefit of the doubt and has access to a lawyer and legal procedure to challenge flawed results. The EU should further support member states' adoption of comprehensive exams that also take into account a child's psychological maturity, life experiences, ability to interact with adults, and demeanor.

Spain, with its long-standing exposure to unaccompanied migrant children, is certainly well placed to lead the adoption of an action plan during its presidency in early 2010.[15] Spanish practices of not detaining unaccompanied migrant children and of regularizing their presence while on Spanish territory are powerful examples of good practice for other EU member states. But Spain also needs to critically and honestly examine its record and not repeat past mistakes. This includes recognition that readmission agreements lacking transparency and safeguards for children, and requiring sending countries to accept children back within an unrealistic timeframe, are not the way forward.[16] It should also reflect on why unaccompanied children in Spain almost never seek asylum-without resorting to the implausible explanation that none of them fit the profile. And it should candidly look at its record of returning unaccompanied Moroccan children to dangerous situations, with the result that many went straight back to Spain. These are important lessons that need to feed into discussion on EU action.

Last but not least, the EU needs to make sure its policies do not undermine but realize European governments' obligations under international human rights law and under the EU's Charter of Fundamental Rights. Its proposed children's rights strategy has the potential to contribute toward this aim and should make unaccompanied migrant children an integral part. Ultimately, though, the EU should also consider filling the existing gaps with a set of binding rules that harmonize member states' response to the common needs and vulnerabilities of all unaccompanied migrant children in Europe, whether they escape persecution or abuse, are smuggled into Europe for exploitation, or have left their homes in search for a better life. And the EU needs to underscore that its members must fulfill obligations under applicable human rights treaties while these children are on European territory, and that children are protected from return to abuse, ill-treatment, or neglect. Member states whose actions fall below European standards should be held to account.

Without such decisive action, unaccompanied migrant children likely remain trapped in their status as migrants, with the result that their protection and safety as children remain elusive aspirations.  

Simone Troller is a researcher in the Children's Rights Division at Human Rights Watch.

 

[1] There are no reliable statistics on how many unaccompanied migrant children enter Europe every year. Asylum statistics, although they do not account for all children, are indicative of the proportion of unaccompanied children as compared to other asylum seekers in Europe. According to the United Nations High Commissioner for Refugees (UNHCR), over the past 10 years unaccompanied children have consistently made up 4 or 5 percent of all asylum applicants in the EU. "Addressing the Protection Gap for Unaccompanied and Separated Children in the European Union," Judith Kumin, director, UNHCR Bureau for Europe, Brussels, September 15, 2009. The presentation is on file with Human Rights Watch.

[2] Human Rights Watch, France - Lost in Transit: Insufficient Protection for Unaccompanied Migrant Children at Roissy Charles de Gaulle Airport, 1-56432-557-1, October 2009, http://www.hrw.org/sites/default/files/reports/france1009webwcover_0.pdf, pp. 49-54.

[3] United Nations Committee on the Rights of the Child, "Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Concluding Observations, United Kingdom of Great Britain and Northern Ireland," CRC/C/GBR/CO/4, October 20, 2008, http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC.C.GBR.... (accessed September 28, 2009), para. 70.

[4] Deutscher Bundestag (German Parliament), "Antwort der Bundesregierung auf die Grosse Anfrage der Abgeordneten Ekin Deligőz, Grietje Bettin, Volker Beck (Kőln), weiterer Abgeordneter und der Fraktion BŰNDNIS 90/DIE GRŰNEN - Drucksache 16/4205 - Rűcknahme der Vorbehalte zur UN-Kinderrechtskonvention" ("Response by the German Government to the Extended Request of the members of Parliament Ekin Deligőz, Grietje Bettin, Volker Beck (Kőln), other members and the parliamentary group BŰNDNIS 90/DIE GRŰNEN - Reference number 16/4205 - Withdrawal of Reservations to the UN Convention on the Rights of the Child"), July 13, 2007, p. 9. Deutscher Bundestag (German Parliament), "Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Rainer Funke, Dr. Werner Hoyer, Klaus Haupt, weiterer Abgeordneter und der Fraktion der FDP - Drucksache 15/1606 - Vorbehaltserklärungen Deutschlands zur Kinderrechtskonvention der Vereinten Nationen" ("Response by the German Government to the Request of the members of Parliament Rainer Funke, Dr. Werner Hoyer, Klaus Haupt, and others, and the FDP parliamentary group - Reference number 15/1606 - Reservations by Germany to the UN Convention on the Rights of the Child"), October 23, 2003, p. 3.

[5] European Committee for the Prevention of Torture, "Report to the Government of Greece on the visit to Greece carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 23 to 29 September 2008," http://www.cpt.coe.int/documents/grc/2009-20-inf-eng.htm (accessed November 1, 2009), para. 53.

[6] Human Rights Watch, Left to Survive: Systematic Failure to Protect Unaccompanied Migrant Children in Greece, 1-56432-418-4, December 2008, http://www.hrw.org/en/reports/2008/12/22/left-survive, pp. 53-93.

[7] Human Rights Watch, Unwelcome Responsibilities: Spain's Failure to Protect the Rights of Unaccompanied Migrant Children in the Canary Islands, vol. 19, no. 4(D), http://www.hrw.org/en/node/10817/section/5, pp. 55-69, 95-98.

[8] Human Rights Watch, Nowhere to Turn: State Abuses of Unaccompanied Migrant Children by Spain and Morocco, vol. 14, no. 4(D), May 2002, http://www.hrw.org/en/news/2002/05/06/spain-and-morocco-abuse-child-migrants, pp. 28-37.

[9] Ibid., pp. 8-14.

[10] Human Rights Watch, Left to Survive, pp. 56-57.

[11] Mubilanzila Mayeka and Kaniki Mitunga v. Belgium (Application no. 13178/03), October 12, 2006, http://www.echr.coe.int/, para. 69.

[12] Human Rights Watch, Left to Survive, pp. 42-45; Unwelcome Responsibilities, pp. 49-54; Lost in Transit, pp. 39-41; and Human Rights Watch, Returns at Any Cost: Spain's Push to Repatriate Unaccompanied Children in the Absence of Safeguards, 1-56432-388-9, October 2008, http://www.hrw.org/en/reports/2008/10/17/returns-any-cost-0, pp. 18-19.

[13] Host states should trace the family or caregiver of unaccompanied children and seek reunification. In certain cases, however, particularly when the child was subjected to violence, exploitation, or neglect inside the family, or when the family was unable to protect the child from such abuse, a child's best interest may not be the return to parents or caregiver. A decision whether it is in a child's best interest to return to his or her family, therefore, must be subject to a careful assessment and cannot be generally assumed.

[14] EU standards on guardianship should be in line with those of the Committee on the Rights of the Child. UN Committee on the Rights of the Child, "Treatment of Unaccompanied and Separated Children Outside their Country of Origin," General Comment No. 6, UN Doc. CRC/GC/2005/6 (2005), paras. 33-38.

[15] Human Rights Watch joined Save the Children, UNHCR, UNICEF, and the Separated Children in Europe Programme in recommendations on necessary EU actions that should feature in an EU action plan. "General Recommendations for EU Action in relation to Unaccompanied and Separated Children of Third Country Origin," September 15, 2009, http://www.savethechildren.net/alliance/europegroup/europegrp_pubs.html (accessed October 21, 2009).

[16] Letter from Human Rights Watch to Prime Minister José Luis Rodríguez Zapatero, January 9, 2007, http://hrw.org/pub/2006/SpainMorocco010907.pdf; Letter from Human Rights Watch to Prime Minister José Luis Rodríguez Zapatero, April 2, 2007, http://hrw.org/english/docs/2007/04/02/spain15628.htm.