Previous PageTable Of ContentsNext Page


Every year tens of thousands of migrant children,46 both accompanied and unaccompanied, make their way to Western Europe where they seek refuge and protection. The number of unaccompanied children arriving in the Netherlands steadily increased throughout the 1990's, peaking at almost 7,000 arrivals in the year 2000.

In recent years, however, these numbers have been in rapid decline, with reports by late 2002 and early 2003 indicating that the number of unaccompanied children seeking asylum is one-third to one-half less than in 2000. The Dutch authorities, as well as lawyers and organizations working with migrant children, attribute this decline to the "success" of the most recent Aliens Act and the new policies for unaccompanied children that came into effect in January and November 2001.47

It is clear that the Netherlands has been successful in discouraging the arrival of migrant children and in limiting the number of temporary residence permits granted to unaccompanied minor children. It is far less clear, however, whether this perceived success has been accomplished in accordance with the Netherlands' international and regional human rights obligations. Rather, it appears that the new policies, as implemented, violate international children's rights standards.

Human Rights Watch's investigation revealed that children's basic rights are frequently ignored or considered inapplicable during the consideration of their asylum and immigration applications. Particular concerns include: adversarial asylum interviews, frequently conducted without the presence of a lawyer or guardian, and often failing to take into account the impact of trauma and children's less developed cognitive ability to present a structured narrative to support their asylum claim; and an inappropriately broad definition of an "accompanied" child under Dutch law.

Applicable international standards
The Convention on the Rights of the Child, which the Netherlands ratified in 1995, establishes that every child is entitled to special care and protection and that the best interests of the child must be a primary consideration in all actions and administrative decisions affecting the child. States have a positive obligation to protect all children within their jurisdiction against abuse, neglect, and exploitation and to ensure that children enjoy an adequate standard of living for their physical, mental, spiritual, moral, or social development.48 States may not discriminate in the provision of the Convention's rights and protections and must take all appropriate measures to ensure that children are protected from discrimination based, among other things, on the immigration status of the child's parents, legal guardians, or family members.49

Notwithstanding these international standards, the Raad van State has held that the rights embodied in the Convention on the Rights of the Child are not applicable to children whose parents have no right to remain in the Netherlands.50 In so holding, the Court has set a dangerous precedent, and has opened the way to lower court decisions that such children are not entitled to any secondary rights deriving from core Convention rights.51 At least one court has also ruled that the Raad van State's analysis applies to children who are in the Netherlands with an adult sibling who has no legal status, regardless of the sibling's legal responsibility or willingness to care for the child.52 Children who fall into one of these categories do not have the right in law to request state protection on the basis of the Convention, even with regard to basic care such as shelter and food.

Human Rights Watch is deeply concerned with the Dutch courts' current interpretation of the applicability of the Convention on the Rights of the Child. Without derogating from its international obligations, the Netherlands cannot simply ignore its international and regional obligations to protect and care for migrant children in its territory.

    · The Dutch government should make clear to all officials that the Convention on the Rights of the Child and other relevant international and regional instruments mandating minimum standards for the treatment of all children are applicable to migrant children regardless of their legal status.

Asylum determination procedures involving children
Asylum applications from children must be considered in light of the international and regional obligations for the protection of children highlighted above, as well as the specific standards and guidelines set forth in the United Nations High Commissioner for Refugees' Guidelines on the Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (UNHCR Guidelines) and the UNHCR Handbook. In addition, the European Union (E.U.) Council Resolution of June 26, 1997 on unaccompanied children who are nationals of third countries (Council Resolution) is authoritative in that it articulates the common E.U. position on the treatment of unaccompanied non-national children in E.U. Member States.53

The overriding principle reflected in international norms regarding asylum cases involving children is that they are children first, and then asylum seekers. State authorities must conduct all proceedings in such cases in a spirit that reflects consideration and respect for the best interests of the child. While children have a right to participate in proceedings and to express their views, it is critical that authorities view this information "in accordance with the age and maturity of the child."54

This is especially true in the case of unaccompanied children, who do not have the benefit of adults willing and able to advocate on their behalf. Paragraph 8.6 of the UNHCR Guidelines instructs officials making asylum determinations that:

Although the same definition of a refugee applies to all individuals regardless of their age, in the examination of the factual elements of the claim of an unaccompanied child, particular regard should be given to circumstances such as the child's stage of development, his/her possibly limited knowledge of conditions in the country of origin, and their significance to the legal concept of refugee status, as well as his/her special vulnerability. Children may manifest their fears in ways different from adults.55

Human Rights Watch's investigation revealed that Dutch asylum and immigration policy and practice fail to comply with a number of these standards. In some cases involving children, IND officials seem to have completely neglected the fact that they are dealing with children.

More than 30 percent of unaccompanied children are dealt with via the AC procedure.56 The AC procedure by its nature is unlikely to ensure that unaccompanied children's special characteristics and needs are taken into account. Given the special vulnerability of children and the state's obligation to protect them and to act in their best interests, Human Rights Watch believes that unaccompanied children's asylum claims should under no circumstances be processed via the accelerated procedure. In cases where children are accompanied by their parents or another adult who is their legal or customary caregiver, the child's request for refugee status should be dealt with as part of the parents' application for asylum unless the child has a distinct fear of persecution and wishes to lodge a separate claim on those grounds. No children should be interviewed immediately after arriving in the Netherlands; children need and should have time to adjust to being in a new environment.57

    · Human Rights Watch urges the Dutch government to amend asylum law and policy so that unaccompanied children are always dealt with in the full asylum determination procedure.

    · In cases where children have arrived as part of a "child family" and IND subsequently determines that the eldest sibling is an adult, the younger children's applications should be dealt with as part of the adult sibling's application if IND makes the determination that the children are "accompanied" and that the adult sibling is willing and able to speak on their behalf, as would be the case in applications involving parents arriving with children.

Even when children have access to full asylum determination procedures, the way in which they are interviewed may result in arbitrary denial of legitimate asylum claims. Child asylum seekers are frequently interviewed in the absence of a lawyer or guardian capable of helping to protect their best interests throughout the procedure. In practice, several different adults play a role in guiding children through the asylum procedure. At the start, a representative of VluchtelingenWerk typically prepares child asylum seekers for the asylum determination process, explaining how the procedure will work and what will be expected of them. Because the representative is the VluchtelingenWerk representative on duty that day, a child may be assisted by more than one representative, depending on when the child applies for asylum and is scheduled for interviews. There is no requirement that the VluchtelingenWerk representative be present during the interviews.58

In cases involving unaccompanied children, the child protection agency NIDOS appoints a guardian after the first interview.59 The guardian is then responsible for managing the child's case. Although NIDOS is officially tasked with providing these children legal assistance, and NIDOS guardians must consent before children under twelve are permitted to apply for asylum, guardians are not trained in asylum law or policy. Moreover, guardians only attend IND interviews with children in cases in which it appears that the child is traumatized or otherwise in need of special support, and then frequently the guardian only observes the interview through a video monitor. As with adults, lawyers are almost never present during IND interviews with children. Indeed, lawyers are usually only appointed after the child has gone through the IND interviewing process. Lawyers have reported that even in cases in which they were appointed before the interview, they were not given adequate notice of the interview date and time.60 Human Rights Watch is concerned that having several different adults play an advisory role during a child's asylum procedure hampers the building of necessary trust between a child and those persons designated to bring his or her best interests to the fore.

    · Human Rights Watch recommends that the Dutch government establish a new policy for interviews with children so that children are supported by a single person, whether a representative of VluchtelingenWerk, a guardian, or a lawyer, throughout the asylum process. The person appointed to the child's case should be appointed from the beginning of the case and be available to support the child through all stages of his or her asylum application; IND interviews should not take place in the absence of this person.

Human Rights Watch has also received reports that child interviews are at times too shallow to fully evaluate a child's claim for asylum. As an example, Mahdi M., a five-year-old Somali boy who showed signs of severe malnutrition and trauma, had an interview for asylum that lasted about two hours and was not conducted in the presence of a lawyer. According to his lawyer and guardian, IND officials focused primarily on gathering information about where he was from, doing little to assess possible grounds for asylum or leave to stay on the basis of humanitarian grounds. Rather, they made a quick determination that Mahdi M. was too young to have participated in political activities and was therefore unlikely to be the subject of persecution. Although Mahdi M. was too young to be able to tell IND very much about his experiences and why they might relate to asylum or other grounds for leave to stay in the Netherlands, he did tell IND that he had lived with his mother in Somalia where they experienced a lot of violence, had little to eat, and could not safely go out onto the street. He told them that his father is dead and his mother terminally ill. When he began to tell IND about an event that had happened to him and his mother, he broke down in tears and was unable to continue. Instead of further interviewing the five-year-old about his experience or ensuring that he was referred for a psychological evaluation and support, IND concluded that Mahdi M. did not meet the Dutch law's criteria for either recognition as a refugee or leave to stay on the basis of humanitarian circumstances.61

Mahdi M.'s lawyer told Human Rights Watch that in her opinion the boy's tears and overall appearance, especially in light of his young age, should have indicated to IND a need to delve more deeply into the possibility of trauma-related experiences. IND made no mention of possible trauma-related experiences in their decision denying Mahdi M. asylum.62

The present method of questioning children and determining their credibility also raises questions about whether interviewers are assessing children's applications properly in light of these applicants' age and maturity. As a representative from the legal department of NIDOS, the organization responsible for guardianship of unaccompanied children in the Netherlands, points out:

The problem for us is the way IND weighs what children say; they use adult standards. Children of five, six, eight years old who know nothing are interviewed and then IND concludes that they are not credible and therefore cannot benefit from the unaccompanied minors permit.63

In an interview with Human Rights Watch, VluchtelingenWerk expressed similar concerns about IND's tendency to challenge credibility by looking for gaps or inconsistencies in the statements of young children without allowing for the age and maturity of the child involved. VluchtelingenWerk lawyers also told Human Rights Watch that in their opinion IND officials spend far too little time actually investigating and evaluating the substance of the children's asylum claims, instead focusing on little details meant to determine credibility and travel route descriptions that mean little to the child being interviewed.64

Human Rights Watch has received reports of a number of cases in which IND was extremely quick to conclude that the child being interviewed lacked credibility or was being "silent and uncooperative" or otherwise withholding information. In one case, for instance, Dutch asylum and immigration officials interviewed two young unaccompanied brothers from Angola-aged eight and thirteen-whose father had been murdered and whose mother had recently died in a refugee camp. The interviewer concluded after meeting with the eight-year-old that his application for asylum lacked credibility and that because the boy was "frustrating a possible inquiry into care options in his country of origin," he should not be granted a permit for unaccompanied children, even pending further investigation into repatriation options. This child was only two years old at the beginning of the time period about which he was being questioned and understandably had difficulty presenting the type of detailed, verifiable information expected of an adult asylum seeker.65

His thirteen-year-old brother faced similar hurdles in being taken seriously and treated in an age-appropriate manner. During his interview, for example, he was asked repeatedly why his father had chosen for the family to live in a particular part of the country. (IND believed this location indicated that the family could not have been at risk of persecution). He was unable to answer, which is unsurprising given that the child was only eight at the time that this decision was made for him. Nonetheless, the child's inability to answer served as one of the grounds for IND's establishing his lack of credibility-a primary reason for IND's determination that the child should not be granted refugee status or a temporary permit for stay under the unaccompanied children's policy.66

In other cases involving more than one unaccompanied child from the same family, or children who came as part of a "child family," IND officials appear to be cross-referencing the information they receive in interviews with younger siblings as a means of assessing the credibility of the whole family's application for asylum. For instance, in the case of the Beye family from Angola, IND officials interviewed the three youngest siblings who were aged five, seven, and ten even though their lawyer had petitioned that they not be interviewed because the eldest sibling, a twenty-one-year-old brother, could tell their story on their behalf. On the basis of these interviews IND concluded that the children and their brother should not be granted an asylum permit because their story lacked credibility. Some of the reasons for this determination included:

    · the ten-year-old child could not remember the names of the men in Angola who beat him and made him steal things and take drugs;

    · the seven-year-old brother mentioned a best friend in the first interview but stated in the second interview that he did not have friends and only played with his little brother;

    · the five-year-old said during the first interview that he had traveled by plane with his brothers and mother, but failed to mention his mother in the second interview;

    · the seven-year-old said he had lived in the same house his entire life but the eldest brother said the family had been moved to a UNITA camp six years ago; and

    · the drawings the children were asked to make of their house in Angola differed.67

The children's lawyer told Human Rights Watch that she could find no reason for having interviewed the three young siblings other than to "create contradictions in their stories to be able to deny the family a residence permit."68 She further expressed her amazement that:

[o]n the one hand the IND stipulates that children younger than twelve cannot sign their own asylum applications because they do not know, even to a certain extent, what is in their best interests, but on the other hand expects them to do interviews and give correct and full details.69

In the case of four-year-old Wesley W., IND officials interviewed him separately despite the fact that he had arrived in the Netherlands with an aunt, who had applied for asylum and whose story IND intended to take into account in assessing the child's claim. After interviewing the four-year-old, the interviewer concluded that he had not sufficiently cooperated in providing details about his travel route to the Netherlands and further lacked credibility because he failed to provide documents with which his identity and nationality could be confirmed.70

The combination of problems associated with IND's interviewing of children highlighted above has led VluchtelingenWerk, NIDOS, SRA, and the Dutch Bar Association to consider taking a formal policy stand against IND's interviewing asylum seeking children under twelve, until IND has revised its policies for conducting and evaluating such interviews.71 Moreover, in March 2003, NIDOS informed IND that it would no longer co-sign asylum applications for children under twelve or otherwise support the interviewing of young children.72 IND responded by temporarily suspending interviews with unaccompanied children under twelve, pending independent evaluations of the interview process by NIDOS, IND, SRA, and VluchtelingenWerk.73 In late March 2003, however, IND resumed interviews of children under twelve years of age in cases in which NIDOS' signature on the asylum application is not required (such as in cases where children are found to have extended family in the Netherlands).74

Human Rights Watch is concerned that Dutch asylum and immigration officials are unnecessarily interviewing very young children without appropriate consideration of their age, maturity, or particular circumstances. We are further concerned that IND officials in some cases erroneously conclude that children are obstructing an investigation or lack credibility on the basis of these flawed interviews. It is inappropriate to burden children with an adult standard for assessing credibility and proof or to conclude that a child's failure to provide information implies an attempt to frustrate an investigation or otherwise deceive IND authorities.

Human Rights Watch urges the Dutch government to address these serious concerns about child interviews. In particular, we recommend the following:

    · The Dutch government should, as a matter of urgency, develop guidelines for asylum interviews of children that ensure that IND authorities assess these applications in light of the child's age and maturity.

    · IND should discontinue the practice of unnecessarily interviewing young children, particularly in cases where a lawyer or state-appointed guardian familiar with asylum law is not present during the interviews. Separate interviews with young children should be conducted only when the child has a distinct fear of persecution and needs to lodge his or her own application on this basis. Where multiple children in a family are interviewed, officials should not place undue emphasis on minor inconsistencies in assessing credibility.

The determination that a child is accompanied
If an asylum-seeking child's application for asylum is denied, Dutch law then categorizes the child as a child migrant, distinguishing between those considered "accompanied" ("bamas": begeleide alleenstaande minderjarige asielzoekers) or "unaccompanied" ("amas": alleenstaande minderjarige asielzoekers) by an adult.75 If it is determined that a child is accompanied, the responsibility to repatriate the child and ensure that he or she is adequately cared for in his or her country of origin or in another country transfers from the Dutch state to the identified adult(s). The implementing guidelines further clarify that it can be expected that the adult(s) will either accompany the child back to the country of origin or another safe country with the goal of providing ongoing shelter, guidance, and care; or arrange for another alternative for the child's accommodation and care outside the Netherlands.76 Guidelines for the implementation of Aliens Act 2000 provide that a residence permit for unaccompanied children ("ama permit") shall only be given when a child's application for asylum is rejected and there are no adequate reception options in the child's home country or elsewhere. In practice, once a child's application for asylum is denied, IND makes a determination as to whether the child is accompanied or not and as such whether an ama permit should be granted.77

The UNHCR defines "unaccompanied children" as persons under eighteen years of age who have been separated from both parents and are not being cared for by an adult who, by law or custom, is responsible to do so. UNHCR uses the term "separated children" to refer to persons under eighteen years of age who are separated from both parents or from their previous legal or customary primary caregiver, noting that "[s]uch children, although living with extended family members, may face risks similar to those encountered by unaccompanied children."78

The UNHCR Guidelines on unaccompanied children further provide: "Where a child is not with his/her parents ... then s/he will be, prima facie, unaccompanied." In cases where children are accompanied by adults other than their parents or legal guardians, the Guidelines recommend the need for an evaluation of the "quality and durability of the relationship" between the child and the adult before setting aside the presumption that the child is unaccompanied. It is critical, for example, that the adult or caregiver in question have the "maturity, commitment and expertise" to adequately assume the responsibilities for the upbringing and development of the child.79

In contrast, the Dutch definition of accompanied children encompasses children who have any family member within four degrees of relation, such as a sibling, an aunt or uncle, a cousin, or a grandparent, in the Netherlands. This adult does not have to have arrived with the child, nor does his or her immigration status or familiarity with the child have any impact on whether the child is deemed to be "accompanied."80

Human Rights Watch is concerned that the Dutch definition of accompanied children is overly broad and in violation of international and regional standards. Our research reveals that IND applies its definition in a manner that fails to take into account what should be the overriding principle in cases involving children-their best interests-and without regard to the potential consequences of such summary decision-making.

Five-year-old Mahdi M., the Somali boy whose case is discussed above, is a typical case of a child wrongly classed as an accompanied minor ("bama"). In his case, the authorities determined from the start of his asylum procedure that he was accompanied because his maternal aunt was living in the Netherlands. Since Mahdi M. was considered too young to be a refugee, the IND ruled that he was the responsibility of his aunt. This means that his aunt-who is legally living in the Netherlands on the basis of her own asylum request-is responsible for tracing his mother, even though no one knows where she is or how to contact her, and for returning Mahdi M. to Somalia.81 If the mother is not found, Mahdi M.'s aunt has a choice to make: she can either give up her life in the Netherlands to return with five-year-old Mahdi M. to Somalia to raise him or she can let Mahdi M. stay illegally with her in the Netherlands, knowing that he may remain forever undocumented.

In contrast, had the authorities determined that Mahdi M. was unaccompanied-since he did not arrive with and is still not being cared for by a parent or another person who has committed to his long-term guardianship and care-Mahdi M. would have been granted a temporary residence permit on the basis of his unaccompanied status pending the authorities' investigation into repatriation options (ama permit).82 This permit would have enabled Mahdi M. to access the full set of rights that Dutch children enjoy and have protected him from living in an undocumented state year after year. If after three years Mahdi M. still could not be returned to a safe and suitable living situation in Somalia, he would be granted a permanent residence permit, enabling him to apply for naturalization.

While in many cases the best interests of the child might be served by placement with relatives and provision of a temporary residence permit legalizing his stay in the Netherlands pending repatriation, unfortunately, there is no such combination of options in the Netherlands. Placement with extended family or those most likely to share cultural and linguistic links with the child only happens when the child is deemed "accompanied" and therefore not eligible for a temporary residence permit or for help from the authorities in terms of family tracing and repatriation options. It is precisely this situation that has led NIDOS to conclude that:

Accompanied minors ("bamas") put us in a very awkward position. We are asked-forced-to choose between legal status and the best interests of the child in light of family placement options. If the consequence of putting a child with an aunt or uncle is that the child becomes a rejected asylum seeker with no options for documentation then it makes it even harder for us to place the child. In that case there are no family reunification or legalization options because the child would have to apply from her country of origin and in any case a fourth degree relation would have no right to request such reunification.83

NIDOS has also expressed concern that apart from the asylum process, there is no separate hearing to assess the best interests of the child and determine whether a child is accompanied. According to IND, the best interests of the child standard are taken into account during the asylum interview so it is unnecessary to have a separate determination on this matter or on placement options.84 Lawyers from VluchtelingenWerk argue:

If the uncle, for example, cannot get the child back to his or her country of origin then the child is simply lost here and open to exploitation. And more than that, the adults who are often given this responsibility for return and care are refugees themselves or otherwise unequipped to deal with this sudden unasked-for responsibility.85

A child who is capable of forming his or her own views has the right, according to article 12(2) of the Convention on the Rights of the Child, to have these views heard and taken into account in all matters affecting him or her. Nonetheless, there is no evidence that these views are being adequately heard and considered in connection with the government determinations that a child is "accompanied" by a particular adult relative.86 Even in cases where the identified adult has stated that he or she is unwilling to take responsibility for the care and protection of the child, the child is still considered accompanied. The only possibility for changing this presumption of being accompanied is for the NIDOS-appointed guardian to demonstrate in a separate appeal that the child's best interests are damaged by placement with the identified adult.87

In a recent case involving three children under the age of thirteen, IND determined that the children were accompanied because of the presence of an aunt and uncle in the Netherlands. The agency concluded therefore that the children were not entitled to ama permits. IND apparently discounted the fact that the children had never had contact with either the aunt or the uncle and that the couple are now Dutch nationals who do not plan to return to Angola, particularly not for the purpose of raising these three children. In response to a query from the lawyer of the children concerning IND's failure to assess what was in their best interests and whether the aunt and uncle were willing or able to care for these children, IND wrote:

The policy does not assume that there is a legal obligation to take care of the child. What we are dealing with is the responsibility and the obligation to make an effort to guide and care. This could also mean that the care takes place somewhere else. When there is at least one adult in the Netherlands that can offer this guidance or care, this person carries the responsibility to assure that the minor will be appropriately received in the country of origin or another country where she could reasonably go. In principle, the Dutch government does not have a role to play in this. As far as the argument that the uncle and aunt of the asylum seeker are not able to provide the guidance or care in the country of origin and therefore that the asylum seeker should be seen as unaccompanied it should be noted that even when the adult in question is not a good caretaker or when he or she has not undertaken the daily care of the child this still does not mean that she or he cannot be expected to take the responsibility for the return to and the care of the child in the country of origin or another country where she could feasibly go. Having said this, the uncle and the aunt in the event that they cannot or are not willing to take care of the child could arrange for other care. For example, they could investigate whether there would be room for the child with other family, friends, acquaintances, clan members, or an orphanage.88

Human Rights Watch is further concerned to hear that in this particular case the Netherlands' child protection services had previously removed (by court order) the aunt and uncle's own children from their home after an assessment that the parents were not suitable caregivers.89 Despite IND's decision that the three migrant children should be the responsibility of this couple, NIDOS has removed them from their home and placed them in a temporary children's center. Nevertheless, IND's decision that the children have no right to recognition as unaccompanied children in need of state protection still stands.90

At least one court of first instance has ruled against handing over all responsibility for care and repatriation to any adult relative present in the Netherlands. The Zwolle district court held that the ama policy as it is currently implemented may result in unreasonable consequences requiring further consideration. In the case before the court, the IND held that an eight-year-old Congolese girl who had arrived unaccompanied in the Netherlands was in fact accompanied because she had an eighteen-year-old sister already in the Netherlands. IND was apparently not persuaded by arguments that the eighteen-year-old herself had been an unaccompanied child in the Netherlands for five years, where she had the right to remain indefinitely and had just begun university studies, and therefore could not be expected to return to the Democratic Republic of Congo to raise her eight-year-old sister. The lower court referred the child's case back to IND, ordering the IND to reconsider granting her a permit for unaccompanied children, questioning the policy obliging the child's sister to take over her care in their country of origin and IND's failure to take into account a previous civil court decision holding that the child should remain in the care of a state-appointed guardian since the sister was not a suitable caretaker.91

On appeal, the Raad van State reversed the Zwolle district court's decision on technical grounds, noting that the law required an administrative appeal to IND before the lower court could consider the case.92 Almost one year later, IND denied the child a permit for unaccompanied children, maintaining that the child's sister had the responsibility of returning her to and arranging for her care in the Democratic Republic of Congo. The child's lawyer is currently in the process of appealing IND's determination.93

In cases where children arrive in the Netherlands together as a family unit and it is determined that the eldest sibling is eighteen or older, the subsequent determination that the younger children are accompanied by the eldest has immediate and dramatic consequences. The entire family's request for asylum will most likely be dealt with in an accelerated procedure, like most adult asylum claims in the Netherlands. If their claim is rejected, the children will be expected to leave the reception facility with their older sibling, who like Mahdi M.'s aunt would be suddenly responsible for returning the children to their country of origin. Dutch courts have held that in these cases, because the "accompanying adult" is illegal, the children have no rights to even basic material conditions such as housing or a food allowance in the Netherlands. In practice, this means that children as young as four years old can be put out onto the street without the basic means of subsistence or provisions for their care, unless NIDOS unofficially intervenes and provides them with some form of temporary accommodation.

For example, in the case of the Da Silva family, four siblings arrived in the Netherlands where they requested asylum. The children told authorities that they were eight, twelve, fourteen, and fifteen years old. During an accelerated asylum procedure the eldest child was sent for a bone scan examination, after which it was determined that she was "at least eighteen years of age." After the four siblings were denied asylum, the authorities denied the three youngest children a temporary permit on the ground that the older sibling who accompanied them could provide for their care, despite the fact that the children would be forced onto the street or to live on charity. Luckily for these children, NIDOS has intervened, allowing them to unofficially remain in a reception facility for the time being.94

Human Rights Watch questions the Dutch government's assertion that siblings and extended family, within four degrees of relation, should be responsible for the repatriation, upbringing, and development of a child. While the Convention on the Rights of the Child does indeed place importance on a child's maintaining links with his or her own cultural identity and family, in no way should this principle outweigh the obligation on signatory states to care for and protect children within their borders. Placing children-without documentation or legal status of any kind-into a home environment that has not been assessed for appropriateness or durability may result in a situation that is not in their best interests.

Summary determinations in the Netherlands as to whether a migrant child is accompanied fail to meet international and regional standards for the treatment of children. It is too easy for the Dutch government to simply wash its hands of the problem of unaccompanied children by claiming that the presence of adult siblings and family members within four degrees of relation on Dutch soil shifts the responsibility for care, protection, and repatriation away from the State. The Dutch government has committed itself to ensuring that every child, without discrimination, is protected from neglect, exploitation, and abuse, and it should respect these international obligations.

    · The Dutch government should amend current asylum and immigration law and policy so that the definition of unaccompanied minor is in conformity with accepted international and regional standards.

    · The IND should revise the current asylum and immigration procedure for children so that each child benefits from a separate hearing on the best long-term solution in light of his or her special circumstances. In doing so, Human Rights Watch strongly suggests that the Dutch procedures follow the UNHCR recommendations set forth in paragraph 9.7 of the UNHCR Guidelines on Unaccompanied Children:

It is acknowledged that many perspectives will need to be taken into account in identifying the most appropriate solution for a child who is not eligible for asylum. Such a multidisciplinary approach may, for example, be ensured by the establishment of Panels in charge of considering on a case-by-case basis which solution is in the best interests of the child, and making appropriate recommendations. The composition of such Panels could be broad-based, including for instance representatives of the competent governmental departments or agencies, representatives of child welfare agencies (in particular that or those under whose care the child has been placed), and representatives of organizations or associations grouping persons of the same national origin as the child.95

      · The government of the Netherlands must take responsibility for the tracing of children's families in countries of origin and must make necessary arrangements for any repatriation, even for those children who are temporarily staying in the Netherlands with extended family. Paragraph 9.2 of the UNHCR Guidelines on unaccompanied children state that no repatriation should take place unless:

Prior to the return, a suitable caregiver such as a parent, other relative, or adult caretaker, a government agency, a childcare agency in the country of origin has agreed, and is able to take responsibility for the child and provide him/her with appropriate care and protection.96

      · All children, including those who arrived as part of a "child family," who are allowed to remain in the Netherlands pending their repatriation should be provided with temporary documentation. Children who are permitted to stay with extended family or an adult sibling in the Netherlands, and who cannot be repatriated within the three-year stay requirement applied to unaccompanied children, should be given the option to apply for permanent residence in the Netherlands.

46 The term "migrant children" is used here to include asylum-seeking children who may subsequently be recognized as refugees.

47 Aliens Act 2000, arts. 14, 28 and 29; Aliens Decree 2000, para. 3.56; TK, 1999-2000, 27 062, no. 1-2 [March 2000 policy paper on unaccompanied minors to Parliament, effective January 4, 2001. See Tussentijds Bericht Vreemdelingencirculaire (TBV) (implementing guidelines), 2000, no. 30.]; TK, 2001, 27 062, no. 14 [May 2001 policy paper on unaccompanied minors to Parliament, effective November 2001. See TBV 2001, no. 33 and TBV 2001, no. 34.]

48 Convention on the Rights of the Child, adopted November 20, 1989, G.A. Res. 44/25, U.N. Doc. A/RES/44/25 (entered into force September 2, 1990), arts. 2, 3, 19, 27, 32, 34, and 36. Article 2(1) of the Convention states that states "shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status" [emphasis added]. Ibid., art. 2(1). Article 39 of the Convention requires states to take all appropriate measures to promote the rehabilitation of children who are victims of "any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts," and to do so "in an environment which fosters the health, self-respect and dignity of the child." Ibid., art. 39.

49 Ibid., art. 2. The Netherlands has also ratified the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social, and Cultural Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention Relating to the Status of Refugees, all of which set forth state responsibility for the protection of all children within their borders. The Charter of Fundamental Rights of the European Union and the Convention for the Protection of Human Rights and Fundamental Freedoms also establish relevant regional standards for the Netherlands' treatment of migrant children.

50 Raad van State, decision no. 200106218/1, para. 2.4.1., February 5, 2002, holding, "[h]et verdrag inzake de rechten van het kind roept, voor zover al rechtstreeks toepasselijk, geen aanspraken in het leven voor kinderen wier ouders op grond van de Nederlandse vreemdelingenwet en regelgeving geen verblijf wordt toegestaan." ["The Convention on the Rights of the Child does not, as far as it is applicable, create any rights/claims for children whose parents, on the basis of the Dutch foreigners law, are not permitted to stay [in the Netherlands]." [unofficial translation] See also, Raad van State, decision no. 200206781/1, February 12, 2003; Raad van State, decision no. 200101904/1, October 10, 2001; Raad van State, decision no. 200000654/1, September 15, 2000.

51 See, e.g., Arnhem district court, AWB 02/70407 and AWB 02/79413, para. 7, October 18, 2002.

52 Ibid. In this case, two Angolan siblings (a boy and a girl) came alone to the Netherlands. After a bone scan examination IND determined that the eldest was eighteen years old and therefore an adult. IND rejected both applications for asylum, denying the two any form of state-based assistance in light of their illegal presence in the Netherlands. The younger sibling's lawyer appealed to the court for basic shelter and subsistence rights on the basis of his being a child entitled to state protection under the Convention of the Rights of the Child. The Arnhem court rejected the appeal.

53 See generally Council Resolution of 26 June 1997 on unaccompanied minors who are nationals of third countries, 397Y0719(02), Official Journal of the European Communities, C 221, 19 July 1997 [Council Resolution on unaccompanied minors]. Many of the guidelines set forth in this Resolution were derived from the Dutch model for dealing with unaccompanied children in the 1990's. The government's two most recent policy papers setting forth the standards for dealing with unaccompanied children in the Netherlands also reference both the Council Resolution and the UNHCR Guidelines. See TK 27 062, no. 2, at 2; TK 27 062, no. 14, at 3.

54 See Convention on the Rights of the Child, art. 12. See also Council Resolution, art. 4(6).

55 UNHCR Guidelines, para. 8.6. See also Council Resolution, art. 4(6).

56 This figure includes children who arrive with an older sibling who is later determined to be an adult. In cases where a child's age is in question, IND sends the child for a bone scan examination as part of the accelerated asylum determination procedure. In June 2002, IND began requesting examinations for determination of whether children are above the age of fifteen in addition to general determination of adulthood versus childhood. The National Ombudsman, VluchtelingenWerk, asylum lawyers, doctors, and medical researchers in the Netherlands have voiced serious concern about the reliability of these scans and the current lack of transparency with which the examinations are carried out. Human Rights Watch interview with J. de Bruijn, head of the research department, National Ombudsman, The Hague, January 3, 2003; Human Rights Watch interview with Wilma Lozowski, policy officer, VluchtelingenWerk (headquarters), Amsterdam, January 9, 2003; email communication from Mark Leijen, lawyer, Leijen Nandoe Kuter & Schoorl, to Human Rights Watch, January 24, 2003.

57 When the May 2001 policy was proposed, the UNHCR office in the Netherlands expressed its concern that the new policy was drafted such that asylum requests of unaccompanied minors could be channeled through the accelerated determination procedure. See UNHCR letter to the Dutch Parliament, commenting on the new policy proposal of the Ministry of Justice concerning unaccompanied minor asylum seekers, June 11, 2001.

58 Human Rights Watch telephone interview with Stefan Kok, asylum policy worker, VluchtelingenWerk (headquarters), February 17, 2003.

59 NIDOS is the child protection agency responsible for providing all unaccompanied children with a guardian. NIDOS is an independent child and family protection institution recognized by the Dutch government. NIDOS' main role is providing care to all unaccompanied children whose asylum claims have been denied (ama's) until they reach the age of eighteen. NIDOS arranges for an accommodation and financial support based on the needs of the ama's under their care.

60 Human Rights Watch interviews with asylum lawyers, January 2003; Human Rights Watch telephone interview with Stefan Kok, asylum policy worker, VluchtelingenWerk (headquarters), February 17, 2003; Human Rights Watch interview with Yvon Zwetsloot, legal department, NIDOS Jeugdbescherming voor vluchtelingen (NIDOS), Utrecht, January 27, 2003.

61 Human Rights Watch telephone interview with Hilda Zwarts, lawyer, SRA, January 28, 2003; Human Rights Watch telephone interview with Mahdi M.'s guardian, February 17, 2003.

62 Human Rights Watch telephone interview with Hilda Zwarts, lawyer, SRA, January 28, 2003; Human Rights Watch telephone interview with Mahdi M.'s guardian, February 17, 2003.

63 Human Rights Watch interview with Yvon Zwetsloot, legal department, NIDOS, Utrecht, January 27, 2003.

64 Human Rights Watch interviews with Wilma Lozowski, policy officer, VluchtelingenWerk (headquarters), Amsterdam, December 12, 2002 and January 9, 2003.

65 IND intended decision, lawyer's brief in response to IND's intended decision, and IND decision. Documents on file with Human Rights Watch.

66 IND intended decision, lawyer's brief in response to IND's intended decision, and IND decision. Documents on file with Human Rights Watch.

67 Email communication from Anne Louwerse, lawyer, Hamerslag & van Haren Advocaten, to Human Rights Watch, January 24, 2003.

68 Ibid.

69 Ibid.

70 Transcripts of IND interviews and IND intended decision. Documents on file with Human Rights Watch.

71 Human Rights Watch telephone interviews with SRA lawyers, January-February 2003; Human Rights Watch telephone interview with Wilma Lozowski, policy officer, VluchtelingenWerk (headquarters), February 17, 2003; Human Rights Watch telephone interview with Yvon Zwetsloot, legal department, NIDOS, February 18, 2003; Human Rights Watch telephone interview with Hans Eizenga, lawyer, SRA-Den Bosch, February 20, 2003.

72 Human Rights Watch telephone interview with Yvon Zwetsloot, legal department, NIDOS, March 21, 2003.

73 Human Rights Watch telephone interview with Wilma Lozowski, policy officer, VluchtelingenWerk (headquarters), March 18, 2003; Human Rights Watch telephone interview with Yvon Zwetsloot, legal department, NIDOS, March 21, 2003.

74 Human Rights Watch telephone interview with Wilma Lozowski, policy officer, VluchtelingenWerk (headquarters), March 24, 2003.

75 See Aliens Act 2000, art. 14.

76 Aliens Circular 2000, C2/7, para. 10.1 and 10.2.

77 See Aliens Decree 2000, para. 3.56.

78 See Protection and Assistance to Unaccompanied and Separated Refugee Children: Report of the Secretary-General, para. 3, U.N. General Assembly, 56th sess., provisional agenda item 126, U.N. Doc. A/56/333 (September 7, 2001). The Council of the European Union has also defined unaccompanied children as persons under eighteen years of age who are "unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively in the care of such a person." Council Resolution on unaccompanied minors, art. 1(1). See also Council Directive 2003/9/EC of 27 January 2003, laying down minimum standards for the reception of asylum seekers, at art. 2(h).

79 UNHCR Guidelines, Annex II, paras. 2, 5, and 8.

80 Aliens Circular 2000, C2/7, paras. 1.3 and 10.1.

81 Human Rights Watch telephone interview with Hilda Zwarts, lawyer, SRA, January 28, 2003; Human Rights Watch telephone interview with Mahdi M.'s guardian, February 17, 2003.

82 See paragraph 3.56 of the Aliens Decree 2000.

83 Human Rights Watch interview with Yvon Zwetsloot, legal department, NIDOS, Utrecht, January 27, 2003.

84 Human Rights Watch interview with H.P. Schreinemachers, coordinator, and Mark Kiela, senior policy officer, Asylum Policy Division, IND, Ministry of Justice, The Hague, January 21, 2003.

85 Human Rights Watch interview with Wilma Lozowski, policy officer, VluchtelingenWerk (headquarters), Amsterdam, December 12, 2002.

86 Convention on the Rights of the Child, art. 12(2).

87 See TBV 2001, 33 in combination with Aliens Circular 2000, C2/7.10.1.

88 IND decision (unofficial translation). See also letter to IND from the childrens' lawyer. Documents on file with Human Rights Watch.

89 Human Rights Watch telephone interview with Esther Kruijen, Defence for Children International-Netherlands (DCI), February 17, 2003; Human Rights Watch telephone interview with Dorien van Veelen, lawyer, SRA-Den Bosch, February 18, 2003.

90 Human Rights Watch telephone interview with Dorien van Veelen, lawyer, SRA-Den Bosch, February 18, 2003.

91 Zwolle district court, decision no. AWB 01/45263, December 21, 2001.

92 Raad van State, decision no. 200200340/1, February 15, 2002.

93 Human Rights Watch interview with Yvon Zwetsloot, legal department, NIDOS, Utrecht, January 27, 2003.

94 Human Rights Watch telephone interview with Marjo Landsman, lawyer, January 29, 2003. See also lawyer's brief to the appeals court on behalf of the four applicants, dated January 27, 2003; email communication from Riëtta van Empel Bouman, case manager, SRA-Rijsbergen, to Human Rights Watch, January 23, 2003.

95 UNHCR Guidelines, para. 9.7.

96 Ibid., para. 9.2.

Previous PageTable Of ContentsNext Page