Letter to Parliamentary Joint Human Rights Committee

Mike Hennessy,

Commons Clerk of the Joint Committee on Human Rights,

Committee Office,

House of Commons,

7 Millbank,

London SW1P 3JA.

October 15, 2012

Distinguished committee members:

We write today in reply to your call for information regarding the human rights of unaccompanied migrant children and young people in the UK.

In response to your question, “is the treatment of unaccompanied migrant children and young people in the UK consistent with the UK's obligations under the UN Convention on the Rights of the Child (UNCRC)?,” we wish to emphasize that emerging plans to return unaccompanied children to Afghanistan without family tracing are highly likely to violate the concept of non-refoulement[1] central to the protection of refugee children as articulated in the UNCRC. We urge the Committee to recommend the immediate and permanent termination of such plans, and the withdrawal of British participation in the joint European Return Platform on Unaccompanied Minors (ERPUM).

Human Rights Watch is an independent, non­governmental organization monitoring human rights around the world and promoting respect for international human rights law. As part of our focus on children’s rights issues, we have conducted substantial investigations on unaccompanied migrant children in various European countries, including Greece, Ukraine, Hungary, France, Italy, Malta, and the UK, as well as extensive research on conditions for children in Afghanistan. We have conducted first-hand interviews with Afghan unaccompanied migrant children in the UK who cannot trace their families in Afghanistan. A summary of Human Rights Watch’s work on unaccompanied minors in Europe may be found in the brochure, “Caught in a Net: Unaccompanied Migrant Children in Europe,” attached to this submission.[2]

As you may be aware, the UK Border Agency has been preparing to return unaccompanied minors to Afghanistan for some time, in the context of its on-going returns of failed asylum seekers. For the most part, the proposed returns involve children who traveled by land and sea from Afghanistan to the UK, without a parent or other care-giver, and at considerable expense and personal risk. Most unaccompanied children are at least 14 years old by the time they reach the UK, but some have been as young as 11. These children have, in many cases, assimilated into British schools, learned English, taken GCSE and A-Level examinations, and may have lost touch with families in Afghanistan. British authorities have attempted—unsuccessfully—to trace family members, and now to propose to return those children to institutional care facilities in Kabul.

Britain is not alone in this initiative: in fact, Britain is one of several European countries participating in the EU-funded European Return Platform for Unaccompanied Minors (ERPUM), a joint initiative which aims to establish procedures for returning Afghan children who are currently in the UK, Norway, and Sweden, among other places. Returns such as these would be facilitated to an institution in Kabul, even though the children in question are frequently from other parts of the country, may never previously have visited Kabul, and have no family or other means of support there.

Human Rights Watch takes the position that Britain’s return of unaccompanied migrant children to institutional care in Kabul would violate its obligations under the UNCRC to protect children from refoulement and to secure the best interests of the child. The Committee on the Rights of the Child defines non-refoulement by stating, in General Comment No. 6, that:

“[I]n fulfilling obligations under the Convention [on the Rights of the Child], States shall not return a child to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child[.]”^[3]

The Committee’s General Comments are considered authoritative interpretations of the treaty.[4] The Committee specifies articles 6 (rights to life and survival) and 37 (rights to liberty and freedom from torture) as examples of issues that might rise to the level of “irreparable harm” referred to in the definition of non-refoulement, which includes risks to the child’s “survival and development.”^[5] The Committee notes that “the assessment of the risk . . . should, for example, take into account the particularly serious consequences for children of the insufficient provision of food or health services.”^[6]

In addition to protecting children from threats to their survival, development, liberty, and physical integrity, non-refoulement in the Committee’s jurisprudence draws on laws preventing military recruitment of children.^[7] The Committee states that:  “[a]s underage recruitment and participation in hostilities entails a high risk of irreparable harm… State obligations… entail extraterritorial effects and States shall refrain from returning a child in any manner whatsoever to the borders of a State where there is a real risk of underage recruitment [or] direct or indirect participation in hostilities[.]”^[8]

The UK’s proposed returns of Afghan unaccompanied minors to institutional care facilities threaten to violate the UNCRC’s protection from refoulement. While individual determinations would depend on the specific facts of a child’s case, evidence more generally suggests that conditions for children in Afghanistan are sufficiently adverse that there may be a “real risk of irreparable harm.” Problematic conditions include, but are not limited to: lack of basic necessities including food, shelter, and health care; lack of access to education in many parts of the country and a risk of attacks on education; lack of access to effective social services; torture and degrading treatment; inadequacy and abuse in the juvenile justice system; and the risk of underage military recruitment by both pro and anti-government forces. Any one of these risks would be sufficient to evidence a real risk of irreparable harm such that unaccompanied children should not be returned to Afghanistan.

Afghanistan’s appalling record on economic and social rights provides evidence that the standard for non-refoulement might easily be met in these cases. The Committee urges States to “take into account the particularly serious consequences for children of the insufficient provision of food or health services,”^[9] when considering return. UNICEF’s statistics for Afghanistan show dire nutrition indicators: 59 percent of children under five are stunted—that is, with significantly delayed growth for their age—and more than a third of children under five years old are moderately or severely underweight for their age group.^[10] Health indicators are also strikingly bad for children: in rural areas, only 30 percent of the population has access to

adequate sanitation facilities,^[11] just 39 percent has access to safe drinking water,^[12] and nine out of ten mothers do not give birth in a health facility.^[13]

Rights outlined in Article 37 of the UNCRC, including freedom from torture and access to juvenile justice, are factors in determining the risk of refoulement; among other issues, children who end up in Afghanistan’s justice system may be at risk of torture and other forms of abuse. The UN Assistance Mission in Afghanistan found that children were among those who were tortured by the National Directorate of Security,^[14] and an independent nationwide study found that 45 percent of juveniles who were interviewed reported being physically abused by police and prosecutors.^[15] The Committee specifically raised concerns over the high rates of police abuse during arrest.^[16] The children’s aid non-governmental organization, Terre des Hommes, identified serious flaws in detention practices, including severe overcrowding, lack of access to education, and lack of food.^[17]

Military recruitment of boys in Afghanistan is a significant problem, and one which could, as stated by the Committee, trigger a host state’s non-refoulement obligations.^[18] The UN Secretary General’s Special Representative on Children and Armed Conflict found that “recruitment and use of children by parties to the conflict was observed throughout the country during the two year reporting period” in her 2011 country report to the Security Council.^[19] Children were recruited in diverse districts, including Kandahar, Ghazni, and Badakshan provinces and across the border in Pakistan, as messengers, tea boys, drivers, combatants, and suicide bombers.^[20] There is no question that these violations are covered by the Committee’s clear language on non-refoulement, and that the widespread nature of these violations raises the risk of recruitment faced by children in Afghanistan.

Compounding the risks faced by all children in Afghanistan is the fact that many of the children in the UK cannot trace families in Afghanistan, despite the efforts of the UK and Afghanistan authorities. Without families to turn to, these children may well face additional challenges obtaining food and medical care, may be without assistance if arrested, and may be even more vulnerable to recruitment by armed groups. Social service programs established to assist children in Kabul and elsewhere are facing funding cuts as international aid to Afghanistan diminishes, with programs increasingly forced to downsize or close; children deported from the UK would have very few resources for assistance.

In light of the significant risk of violating UNCRC obligations to protect children from refoulement by returning unaccompanied minors to Afghanistan without family tracing, Human Rights Watch recommends that the British authorities immediately suspend such plans and withdraw from ERPUM, the joint European initiative.

Please do not hesitate to contact us if we can supply further information about the important topics of your inquiry.

Best regards,

Alice Farmer

Researcher

Children’s Rights Division

Human Rights Watch