II. Lack of Protection for Unaccompanied Migrant Children

Unaccompanied children (children who travel without parents or other guardians) are particularly vulnerable to rights violations outside of their country of origin.

In recent years, around 1,000 children annually have arrived in Indonesia after traveling alone from Afghanistan, Burma, and other countries. During the year 2012, for example, 1,178 unaccompanied minors were registered in Indonesia by UNHCR.[36] Most were boys, and 81 percent were from Afghanistan, with Pakistan and Burma as other main countries of origin.[37] While most unaccompanied children arriving in Indonesia are 16 or 17, some 3 percent of the arrivals in 2012 were below 14 years old.[38]

Because some of these children move through Indonesia relatively fast, and because children age out of this category, the cumulative numbers of unaccompanied minors in the country fluctuates. As of March 2013, there were 718 unaccompanied minors registered with UNHCR in Indonesia; 121 of them, or 16 percent, were in detention.[39]

There are likely more unaccompanied minors in Indonesia than those included in UNHCR’s statistics since not all children register with UNHCR, either because of periodic backlogs in UNHCR’s registration system, or because they decide that registration does not provide any significant benefits. Others may be in detention awaiting UNHCR’s first visit, which can take weeks or months.

According to the Committee on the Rights of the Child, these children deserve special care.[40] The committee, the body authorized to interpret the UN Convention on the Rights of the Child, a treaty to which Indonesia is party and which it must follow, issued General Comment No. 6 in 2005. General Comment No. 6 dictates that when unaccompanied migrant children enter a country, they should be assigned a guardian who can look after their material needs, and receive legal representation in immigration proceedings.[41]

Yet Indonesia, for the most part, fails to meet the obligations described in General Comment No. 6. It leaves these children without guardianship, so no-one takes responsibility for assisting these children in accessing basic services or making decisions about future migration. They are not given free legal representation, making it hard for them to understand asylum proceedings and present their case. As discussed below, every year hundreds are detained with unrelated adults, and many are subject to physical abuse. Of those not detained, only a handful of children have shelter, and others are left to fend for themselves.

No Guardianship, no Shelter

Indonesia fails to provide unaccompanied migrant children in its territory with guardianship, despite its obligations to protect this exceptionally vulnerable group. Without a guardian, children have no one to look after their basic needs, and do not receive guidance on changing their migration status or on other matters. Some children remain in detention, while others are on the streets without any assistance with basic needs such as shelter and food.

The Committee on the Rights of the Child specifies that unaccompanied migrant children must be assigned a guardian to protect their interests.[42] According to the Committee, the guardian’s job is much broader than that of a legal representative, to which the child is also entitled: the guardian, who need not be a lawyer, should be consulted on all actions taken for the child whether they are legal in nature or not; should have the authority to be present in all decision-making processes, including immigration hearings, care arrangements, and efforts to make long-term plans for children; and should be knowledgeable about child care in order to ensure that the child’s “legal, social, health, psychological, material and educational needs are adequately covered.”[43]

As far as Human Rights Watch is aware, no Indonesian government agency has been given the legal responsibility for providing guardianship to unaccompanied migrant children.  An NGO, CWS, runs a shelter program for approximately 90 unaccompanied minors in Indonesia but describes the scope of their mandate as “a care and maintenance program,” not a formal assignation of guardianship.[44]

The government of Indonesia is failing not only in its responsibility to provide guardians but also to provide adequate shelter for unaccompanied minors. At the time of our investigation in September 2012, just one organization, CWS, provided shelter for unaccompanied minors, and with 93 children in facilities near Jakarta, those facilities were full.[45]  As of March 2013, IOM had negotiated with the North Sumatra Provincial Department of Social Affairs (DINSOS) to house 44 unaccompanied minors with refugee status in DINSOS shelters designed for Indonesian children. IOM hopes that this model might be replicated in other provinces, including Yogyakarta and Makassar.[46] Nonetheless, with more than 1,000 unaccompanied minors arriving in Indonesia annually, and these shelters covering fewer than 140 places, these arrangements are far from sufficient.

Many unaccompanied minors are detained, as discussed below. The lack of guardianship and shelter can extend their periods of detention. According to IOM and CWS, unaccompanied minors in detention need to wait for there to be room in a shelter before Indonesia will release them. [47] At the time of our investigation in September 2012, 150 children remained in detention awaiting space to open in a shelter;[48]as of March 2013, there were 121 unaccompanied minors seeking asylum or with refugee status in detention.[49]

Those lucky enough not to be detained, but without a place in a shelter, are left to fend for themselves. This can amount to some 700 children per year without help. Some get informal assistance from other migrants. Others are left without money, food, and shelter. Ali H., 16 years old, said,

I don’t get any money. The house costs 600,000 rupiah [roughly US$61], for a bedroom with four people, one small room ... I don’t have a job.  The house my family sold [in Afghanistan, to finance his trip], the money from that will last for one more month. After that, I’m not sure what I’ll do.[50]

Some boys, vulnerable without assistance, fear arrest or re-arrest. Azim M., an unaccompanied migrant boy from Afghanistan who had arrived in Indonesia two months before his interview with Human Rights Watch, was effectively confined to a small house in an area outside Jakarta that is popular with migrants.  “I stay inside the house all day,” he said. “I’m afraid [immigration officials] will find me. I do nothing all day—sit inside all day.” Azim had received a token from UNHCR—a piece of paper the size of a business card indicating a date several months ahead for him to register as an asylum seeker. He said he had no other assistance from them and said he had not communicated with them since.[51]

There is a nascent understanding within the region that unaccompanied children need more care. UNHCR, in collaboration with The Bali Process, a regional intergovernmental body on people smuggling and trafficking that Indonesia and Australia co-chair, initiated a mapping project in September 2012 to understand issues faced by unaccompanied and separated children in Southeast Asia.[52]

No Legal Assistance

Unaccompanied migrant children in Indonesia receive no legal representation, either in requesting asylum or in challenging detention.[53] Article 37(d) of the CRC mandates that children deprived of their liberty should have prompt access to legal assistance, and the Committee on the Rights of the Child has emphasized that this specifically applies to unaccompanied migrant children in migration detention.

None of the unaccompanied migrant children we interviewed said they had legal assistance. Sayed M., a 16-year-old unaccompanied Afghan boy detained at an IDC with unrelated adults told us, “I’ve never seen a lawyer.”[54] Ahmad Z. was 17 years old when he was detained at Pekanbaru IDC. He said that “some people were released by an Indonesian lawyer, but I didn’t have a lawyer.” He remained in detention for almost eight months before UNHCR helped secure his release.[55]

The Committee on the Rights of the Child emphasizes that in cases where unaccompanied children are subject to administrative proceedings, including immigration or asylum proceedings, they should be provided with a legal representative (in addition to the guardianship functions described above).[56] Yet unaccompanied migrant children in Indonesia receive no such assistance at any stage in the process of applying for refugee status.