AEDH

In Europe, unaccompanied minors are not protected

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Around the world, the number of asylum-seeking and migrant children travelling alone has increased five-fold since 2010. According to UNICEF, at least 300,000 unaccompanied children were recorded in some 80 countries in the combined years of 2015 and 2016, up from 66,000 in 2010 and 2011[1].

Europe is not immune to this phenomenon, as it is estimated that between 2015 and 2016, one in three asylum seekers was a child[2]. More specifically, according to Eurostat, 63,000 asylum applications by unaccompanied children were lodged in 2016 in the EU Member States[3]. Despite a significant decline from the approximately 96,500 unaccompanied minors registered in 2015, this number is about 5 times higher than the annual average during the period 2008-2013 (around 12 000 per year) and represents a low range as it does not include unaccompanied minors that could not introduce or have not introduced an asylum application.

These children and teenagers that take the road of exile to Europe alone are particularly vulnerable. Most of them have fled situations of conflict and persecution in their country of origin (63% came from Afghanistan, Syria and Iraq in 2016 according to Eurostat[4]) and continue to be exposed to risks of violence, exploitation and abuse during their journey. According to a recent study by the International Organisation for Migration (IOM), 91% of minors surveyed in Italy during the first months of the year 2017 reported being victim of violence on the Central Mediterranean Route, against 75% in 2016[5]. In fact, as for adults, the sealing-off of borders push them to take more and more dangerous routes.

Too often, their arrival on the EU territory does not put an end to their problems since, even within the Member States, national standards and practices are not sufficient to ensure their rights and sometimes even contravene their protection needs. Age assessment procedures, reception conditions, the processing of files and the formalities they have to face vary from one Member State to another, without the principle of the best interests of the child being really taken into account, although this principle is guaranteed by the International Convention on the Rights of the Child (ICRD) and the Charter of Fundamental Rights (Article 24) and should take precedence over them being nationals of a third country.

An unequal distribution over EU territory 

The distribution of unaccompanied minors over EU territory is particularly unequal. According to EASO figures, in 2016, Germany alone has registered more than half of the asylum applications filed by unaccompanied minors in the EU Member States accounting to 35,935 applications. In January 2016, the Swedish Minister for Migration and Justice, Morgan Johannson, estimated that during the second half of 2015, 26,000 unaccompanied children had arrived in the country[6].

Italy is well behind, with only around 6,000 applications representing 10% of all claims filed in the EU. However, as for adults, the number of arrivals has grown steadily during the last months.

A chaotic situation in the « hotspots »

The situation of children, whether migrants or refugees, is particularly intolerable in the « hotspots » of Greece and Italy. In a recent report, the European Court of Auditors observed that « there was still a shortage of adequate facilities to accommodate and process unaccompanied minors in line with international standards  »[7].

In Greece, the closure of the Balkan route and the implementation of the EU-Turkey agreement had the effect of reducing the number of places available in reception centres, including for vulnerable persons. Thus, of 2,000 unaccompanied minors in Greece as of April 2017, 937 were on a waiting list to be transferred to an appropriate shelter[8]. In Italy, more than 20 000 unaccompanied children arrived on the Italian shores during the year 2016. However, in October of the same year, the reception system only had available places for around 4,000 children.[9]

The emergency relocation scheme adopted in September 2015 has provided little relief. The Commission notes indeed that « as of 2 April 2017, only 341 unaccompanied and separated children had been relocated from Greece  » and that, in Italy «  only one separated child has been relocated as the authorities have not yet developed a specific procedure for the relocation of unaccompanied children »[10]It recalls that « under the Council Decisions on relocation, Member States should prioritise the relocation of vulnerable persons, including unaccompanied children  »[11]. But the Commission fails to disclose that the biggest group of unaccompanied minors in Greece and the EU are Afghanis, who are not eligible for relocation. In practice, many children are thus excluded from the mechanism.

As for family reunification procedures, they are excessively lengthy as minors might have to wait for months before being reunited with their family members.

These waiting periods and the absence of safe and legal pathways to Europe put many children at the mercy of criminal networks. A report published by the University of Harvard in April 2017 indicates that a growing number of children stranded on the Greek islands engage in prostitution in order to raise the sum required by smugglers and have the opportunity to quickly join Member States like Germany and Sweden.[12]

Arbitrary and abusive age assessment procedures 

Legal obstacles to immediate care for unaccompanied children include the growing trend of member state administrations to contest their minority, either because they lack civil status documents or because the authenticity of these documents is questioned.

Despite the repeated statements made by the European Parliament, the guidelines issued by both the Commission and the Fundamental Rights Agency as well as the measures suggested by EASO, the willingness to « scientifically » confirm or infirm the reported age often leads to use techniques that are deemed unreliable and invasive.

Some methods, such as hair and genital examinations, do not respect the dignity and the physical integrity of children, and can even be traumatic for those who have suffered physical or sexual abuse. As for dental and « bone maturity  » tests, they only give a rough estimate with a margin of 2 or 3 years, as the scientific literature constantly reminds us. All European paediatric societies state clearly that there is currently no scientific method available to identify precisely the age of a child and determine with certainty whether he or she is major or minor[13].

Many national authorities disregard the fact that the child should always be given the benefit of the doubt, and minors are thus often deprived of their right to protection, treated like adults, kept in inadequate housing conditions or even held in detention.  For example, the Hungary Helsinki Committee reported cases where children under 13 have been registered as adults by the Hungarian authorities and treated as such.[14]

Deficient care and safeguards

The Procedure Directive of 2013 and the Return Directive of 2008 provide that unaccompanied minors – as they are legally incapable – should be assisted by a legal guardian until they attain the age of majority or leave their host country.[15] However, access to a guardian is far from being systematic in most Member States.  In Greece for example, all the children interviewed while in police custody did not even know they were entitled to guardianship.[16] However, without legal representation, a minor cannot apply for asylum, receive legal aid or contest the decisions made against him or her.

Beyond this issue of legal representation, the absence of guardian has other consequences. The Council of Europe Special Representative of the Secretary General on Migration and Refugees (SRSG), alerts us to the fact that « without a guardian and suitable care, (…) children may be exposed to serious protection risks, such as sexual exploitation, and are more likely to go missing  »[17].

Europol estimates that 10,000 unaccompanied migrant children have « disappeared » after their registration, half of them in Italy. But this number, announced by the Agency in an interview given in 2016 to the daily newspaper The Observer[18], is not supported by any accurate report. In fact, there are currently no reliable data on the exact number of missing children, as some of them are not registered upon arrival. There are even less data on the causes of these « disappearances », whether forced or voluntary. What is certain, however, is that the absence of adequate care and the poor reception conditions are factors that may encourage them to flee the centres to which they are assigned.

Arbitrary detention and degrading reception conditions 

Unaccompanied minors live in conditions that are far from being in conformity with the requirements of the Reception Conditions Directive[19] and the specific needs related to their age. In the North of France for example[20], many of them are crammed into camps where living and sanitation conditions are miserable, and without being separated from adults, which expose them even more to risks of abuse. In such a context, access to education and healthcare is rarely guaranteed.

Above all, their detention, supposed to be exceptional[21], has become common practice in some member states. This is notably the case for Hungary, where the new law allowing for the systematic detention of asylum seekers in the transit zones applies to children over the age of 14.[22]

But it is also the case in Greece, where some children are kept in closed facilities for lengthy periods while awaiting transfer to a child-friendly accommodation.[23]Very often, the children concerned do not receive any information on the reasons and duration of their confinement, nor on their right to asylum. And they can obviously not exercise any right to appeal.

Return: irregularity or legal vacuum 

As for minors’ return, practices differ from one member state to another. Certain states, like the United Kingdom, refrain from returning migrants under 18, but do not leave them the option to stay beyond that age.[24] Others do not prohibit the return of minors. It is the case of Germany, for example, who announced recently its project to build « orphanages » in Morocco to deport minors who have broken the law, or who want to leave the German territory « voluntarily » ; Spain already had an initiative of this type several years ago.

Broadly speaking, young migrants who reach the age of majority or whose asylum application have been rejected lose their legal status or become « irregular ». Some states would even go further and deprive « irregular » minors from access to education (Bulgaria, Finland, Hungary, Latvia, Lithuania)[25] or restrain their access to healthcare  (Bulgaria, Cyprus, Finland, Lithuania, Luxembourg, Slovakia)[26].

A full array of recommendations… without binding force

This alarming situation led the Council of Europe Special Representative of the Secretary General on Migration and Refugees (SRSG), Tomáš Boček, to elaborate an Action Plan on protecting migrant and refugee children (2017-2019)[27]. Adopted on 19 May 2017 by the 47 Council of Europe member states, this document has three main pillars :

– ensuring access to rights and child-friendly procedures

– providing effective protection

– enhancing the integration of children who would remain in Europe.

 

 

Action Plan on protecting migrant and refugee children (2017-2019)

 

  1. Ensuring access to rights and child-friendly procedures

– By ensuring access to information and to child-friendly procedures

– By ensuring that every child has a nationality

 

  1. Providing effective protection

– By establishing an effective guardianship system in each member state

– By ensuring appropriate shelter for children and their families during emergencies and mass arrivals

– By assisting children and families in restoring family links and reunification, in accordance with existing norms

– By avoiding resorting to the deprivation of liberty of children on the sole ground of their migration status

– By ensuring that children are protected from violence, including trafficking and sexual exploitation

 

  1. Enhancing the integration of children who would remain in Europe

– By ensuring that refugee and migrant children are provided with education

– By providing opportunities for refugee and migrant children to participate in society

 

For its part, noting « gaps and shortcomings » in the care for minors, the European Commission published on 12 April 2017 a communication outlining priority actions for the protection of migrant and refugee children.[28] Those measures, who have been welcomed and endorsed by the Justice and Home Affairs (JHA) Council[29], are designed to « reinforce the protection of all migrant children at all stages of the process  », with a special focus on unaccompanied minors.

These measures include the appointment of a guardian upon arrival in Europe and the creation of a « European guardianship network » so that in each member state the guardians appointed to accompany minors can exchange their « good practices ». The possibility of foster or family-based care should also be provided.

The Commission calls for « reliable, multi-disciplinary and non-invasive  » procedures to assess the age of young asylum-seekers and migrants and specify that to «  support the implementation of [such] procedures by all Member States, EASO will update its guidance shortly  ».

Access to « legal assistance, healthcare, psychosocial support and education » should be guaranteed as soon as possible, the Commission adds, regardless of the minor’s legal status or situation. Furthermore, the vulnerability and specific needs of each child should be assessed individually upon arrival, and duly taken into account for all decisions that concern him or her.

The Commission insists that child protection officers should be appointed in all « hotspots » and that priority should be given to the relocation of unaccompanied minors, as well as the processing of their cases.

In an exercise we have gotten used to, the Commission adds to these recommendations regarding the respect of rights by Member States, a necessary reinforcement of EU external action. One is not surprised, therefore, to find again the objective of addressing the « root causes » which lead children to leave their countries of origin, and that of offering them a better protection along migratory routes, mainly through « projects targeting the protection of unaccompanied children in third countries (…) to prevent child trafficking or smuggling  ».

The Commission also encourages member states to increase resettlement places for children in need of international protection… while ensuring that « family tracing  » and « reintegration  » measures are adopted for those who must be returned.

Finally, underlining the « negative impact of detention on children  », the Commission considers that « everything must be done to provide alternatives to administrative detention for children  ». However, in parallel, it does not hesitate in recalling that detention is the best way to prevent the risk of absconding.[30]

In addition to not having any binding force and depending on the goodwill of member states, these recommendations are far from being sufficient. The detention of a child on the sole ground that he or she is a migrant or an asylum seeker is always contrary to his or her best interest. The fact that this possibility has been introduced into European law by the latest reform of the European asylum system cannot, under any circumstances, justify it on the merits. Above all, there are tens of thousands of children putting their lives in danger to seek refuge in Europe, and one can reasonably have doubts on the fact that a few resettlement places will help resolve the problem, especially if states continue to refuse entry to those who reach their borders.

Solutions proposed for the improvement of age assessment procedures remain, on the other hand, rather vague and will not prevent the lapses that were observed. The Commission merely refers to EASO’s guidelines. Moreover, it neglects to remind member states that medical age assessment procedures should be used only as a last resort, where there are serious doubts on the person’s minority, and that, in the event of remaining uncertainty, the principle should be that of the presumption of minority.

Finally, it is particularly regrettable that the Commission stops short of addressing the issue of the transition to majority that leaves many youngsters in a state of legal limbo, especially those who have no right of residence. It is imperative that specific guidelines are given to member states, to protect these young people from their return at the age of 18, until such time that a durable situation, adapted to their personal situation and their trail during their stay in the EU, can be found.

 

 In 2013 already, following the adoption by the Commission of an Action Plan on unaccompanied minors (2010-2014), the European Parliament had deplored the fact that « the Commission’s approach is not based more on protecting the fundamental rights of such minors »[31]. Several years late, the same observation is made. The measures proposed by the Commission remain largely inadequate to ensure a comprehensive protection of unaccompanied minors and enable them to exercise their rights. The best interest of the child, that should take precedence over any other considerations in the decisions that affect them, is not respected by the Commission itself who persists in refusing to condemn the detention of children, and continues to a large extent, to favour « migratory control » over their right to protection. Only the adoption of binding measures providing minimum standards for the protection of unaccompanied minors could result in member states respecting their international obligations in this matter. However, on this ground, both the Commission and the Council advocate for a second-rate protection of minors, because they are foreigners.

 

To go further:

  • European Institutions

– European Commission, press release : « Protecting all children in migration : Commission outlines priority actions », Brussels, 12 April 2017 : http://europa.eu/rapid/press-release_IP-17-906_en.htm

– European Commission, Communication : « The protection of children in migration  », », Brussels, 12 April 2017 : https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20170412_communication_on_the_protection_of_children_in_migration_en.pdf

– European Parliament, Resolution of 12 September 2013 on the situation of unaccompanied minors in the EU, September 2013http://www.europarl.europa.eu/sides/getDoc.do ?pubRef=-//EP//TEXT+TA+P7-TA-2013-0387+0+DOC+XML+V0//EN

  • EASO 

– EASO, Age Assessment practice in Europe, December 2013 : https://www.easo.europa.eu/sites/default/files/public/EASO-Age-assessment-practice-in-Europe1.pdf

  • FRA

– FRA,  Opinion of the European Union Agency for Fundamental Rights on the impact on children of the proposal for a revised Dublin Regulation, 23 October 2017 : http://fra.europa.eu/en/opinion/2016/fra-opinion-impact-children-proposal-revised-dublin-regulation

  • Council of Europe

– Tomáš Boček – Council of Europe Special Representative of the Secretary General on Migration and Refugees, Thematic Report on migrant and refugee children : https://www.coe.int/en/web/portal/full-news/-/asset_publisher/VN6cYYbQB4QE/content/srsg-identifies-main-challenges-for-migrant-and-refugee-children-in-europe ?_101_INSTANCE_VN6cYYbQB4QE_languageId=en_GB

– Tomáš Boček – Council of Europe Special Representative of the Secretary General on Migration and Refugees, Action Plan on protecting migrant and refugee children, Strasbourg, 19 May 2017 : http://www.coe.int/en/web/portal/-/47-european-states-agreed-on-an-action-plan-on-how-to-protect-children-in-migration

  • Doctors of the World (Médecins du Monde)

– Médecins du Monde, Age assessment for unaccompanied minors, 28 August 2015 https://mdmeuroblog.files.wordpress.com/2014/01/age-determination-def.pdf

  • PICUM

PICUM : Protecting undocumented children : Promising policies andpractices from governments  ; February 2015 : http://picum.org/picum.org/uploads/publication/Protecting%20undocumented%20children-Promising%20policies%20and%20practices%20from%20governments.pdf

 


[1] UNICEF, « A child is a child : Protecting children on the move from violence, abuse and exploitation  », 17 mai 2017 : https://www.unicef.org/publications/index_95956.html

[2] European Commission, «  The protection of children in migration  », Bruxelles, 12 April 2017 : https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20170412_communication_on_the_protection_of_children_in_migration_en.pdf

[3] Eurostat, Press release : « 63 300 unaccompanied minors among asylum seekers registered in the EU in 2016 – Over half are Afghans or Syrians  », 11 May 2017

[4] Eurostat, ibid.

[5] International Organization for Migration, Displacement Tracking Matrix Flow Monitoring Surveys, June–November 2016 and February–April 2017, IOM analysis.

[6] Euractiv, 7.01.2016 – http://www.euractiv.com/section/justice-home-affairs/news/26-000-unaccompanied-children-flock-to-sweden-over-last-4-months/

[7] European Court of Auditors, EU response to the refugee crisis : the ‘hotspot’ approach, 2017 Special Report n° 6 http://www.eca.europa.eu/Lists/ECADocuments/SR17_6/SR_MIGRATION_HOTSPOTS_EN.pdf

[8] « A child is a child : Protecting children on the move from violence, abuse and exploitation  », UNICEF, 17 mai 2017 : https://www.unicef.org/publications/index_95956.html

[9] Report of the fact-finding mission to Italy by Ambassador Tomáš Boček, Council of Europe Special Representative of the Secretary General on migration and refugees, 16-21 October 2016 :  https://search.coe.int/cm/Pages/result_details.aspx ?ObjectId=09000016806f9d70

[10] European Commission, « Communication from the Commission to the European Parliament and the Council on a more effective return policy in the European Union – a renewed Action Plan », 2 March 2017, p. 11

[11] European Commission, Ibid., p. 11

[12] University of Harvard, « Emergency within an Emergency : The Growing Epidemic of Sexual Exploitation and Abuse of Migrant Children in Greece », Avril 2017 : https://fxb.harvard.edu/new-report-emergency-within-an-emergency-exploitation-of-migrant-children-in-greece/

[13] Thomas Hammarbeg, Commissaire aux droits de l’Homme « Methods for assessing the age of migrant children must be improved », 9 August 2011 : https://www.coe.int/en/web/commissioner/-/methods-for-assessing-the-age-of-migrant-children-must-be-improv-1

[14] Hungarian Helsinki Committee, « Best interest out of sight : the treatment of asylum seeking children in Hungary », May 2017 : http://www.helsinki.hu/wp-content/uploads/Bestinterestoutofsight.pdf

[15] See Directive 2008/115/EC of the European Parliamant and the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/ ?uri=CELEX:32008L0115&from=FR) and Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/ ?uri=CELEX:32013L0032&from=EN)

[16] Human Rights Watch, « Why are you keeping me here ? Unaccompanied Children Detained in Greece », September 2016

[17] Tomáš Boček, Special Representative of the Secretary General on Migration and Refugees, Thematic Report on migrant and refugee children

[18] Mark Townsend, “10,000 refugee children are missing, says Europol“, The Observer, 30.01.2016.

[19] Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection : http://eur-lex.europa.eu/legal-content/EN/TXT/ ?uri=celex%3A32013L0033

[20] UNICEF, « Ni sains, ni saufs, une enquête sociologique sur les enfants non accompagnés sur le littoral du Nord et de la Manche », June 2016 : https://www.unicef.fr/contenu/espace-medias/ni-sains-ni-saufs-enquete-sur-les-mineurs-non-accompagnes-dans-le-nord-de-la-france

[21] Directive 2013/33/EU on the reception conditions of asylum seekers provides indeed that «  Minors shall be detained only as a measure of last resort and after it having been established that other less coercive alternative measures cannot be applied effectively »

[22] See on this subject the article of AEDH : « In Hungary, the refugee-hunting season is open !  », March 2017 : http://www.aedh.eu/In-Hungary-the-refugee-hunting.html ?var_recherche=hunting

[23] Human Rights Watch, Ibid.

[24] UNICEF, « A child is a child : Protecting children on the move from violence, abuse and exploitation  », 17 May 2017 : https://www.unicef.org/publications/index_95956.html

[25] Deutsche Welle, “Germany to build orphanages in Morocco to deport minors”, 5 May 2017 : http://www.dw.com/en/germany-to-build-orphanages-in-morocco-to-deport-minors/a-38724222

[26] UNICEF, Ibid.

[27] UNICEF, Ibid.

[28] Council of Europe, « 47 European States agreed on an Action Plan on how to protect children in migration », 19 May 2017 : http://www.coe.int/en/web/portal/-/47-european-states-agreed-on-an-action-plan-on-how-to-protect-children-in-migration

[29] European Commission, « Communication from the Commission to the European Parliament and the Council on a more effective return policy in the European Union – a renewed Action Plan », 2 March 2017

[30] See JHA Council Conclusions on the protection of children in migration, 8 June 2017 : http://data.consilium.europa.eu/doc/document/ST-10085-2017-INIT/en/pdf

[31] European Parliament, European Parliament resolution of 12 September 2013 on the situation of unaccompanied minors in the EU, September 2013 http://www.europarl.europa.eu/sides/getDoc.do ?pubRef=-//EP//TEXT+TA+P7-TA-2013-0387+0+DOC+XML+V0//EN

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