C Explanatory memorandum by Ms Reps,
rapporteur
1 Introduction
1. At any one time, there may be as many as 100 000
unaccompanied migrant children in Europe, mostly in the European
Union countries. Many of these children have fled from wars, violence
or extreme poverty in their home countries; some have been trafficked
to Europe, others have been sent by parents or come for mixed motivations.
Whatever the reasons for their flight, once in Europe, too many
of these minors remain without appropriate assistance and protection.
2. It is evident that Europe has no capacity to absorb all those
who wish to move here in search of a better life. It can often be
in the child’s best interest not to have to leave home in the first
place. However, once children find themselves unaccompanied on the
territory of the Council of Europe member states, these states have
the responsibility to offer them adequate and age-appropriate assistance
and protection, irrespective of their immigration status or whether
they have applied for asylum or not.
Note
3. The issue is not new. Over the last decade much ink has been
spilled on various recommendations, including by the Council of
Europe.
Note Yet,
in practice, many European governments still pay insufficient attention to
the vulnerabilities of unaccompanied children and their needs, and
they hold divergent positions as regards their best interests. In
some countries, unaccompanied children are primarily dealt with
as irregular migrants destined to be sent back home; only a meagre
percentage ever receives refugee or other form of more regular status.
Note Instead, many
end up in situations of prolonged detention, are registered as adults
after unreliable age assessment examinations, face bureaucratic
obstacles to accessing education or health care, and have access
to increasingly narrow channels for obtaining a regular residence
permit once they reach adulthood. Furthermore, they are easy prey
for violence, trafficking and exploitation.
4. Whereas until recently the problem touched mostly western
and northern Europe, today it is southern Europe that bears the
brunt of unaccompanied children arriving in mixed migration flows,
and several new members of the European Union and some of the traditional
countries of origin outside the European Union are becoming increasingly
affected. Low awareness and even lower protection standards in many
parts of Europe put unaccompanied children in a particularly vulnerable
situation, which highlights the need for prompt responses from all
Council of Europe member states.
5. The fact that the European Union has also made the issue of
unaccompanied minors a priority within its five-year asylum and
migration strategy 2010-2014 (commonly known as the “Stockholm Programme”),
and that it has recently adopted an Action Plan on unaccompanied
asylum-seeking minors, indicates all the more the need to develop
an appropriate policy response across Europe.
6. The present report identifies a number of key problem areas
which your rapporteur regards as being of particular concern to
the member states, or where she considers the Council of Europe
to possess specific or complementary expertise to contribute to
the current international debate on the issue. It also outlines
possible durable solutions and how member states should go about
attaining them.
7. The report is primarily based on the information available
from recent publications by the various bodies of the European Union,
the Council of Europe, the United Nations, the International Organization
for Migration (IOM), Human Rights Watch (HRW), the Platform for
International Cooperation on Undocumented Migrants (PICUM), Save
the Children, as well as on the information gathered at the hearing
held by the Committee on Migration, Refugees and Population on 12
December 2008 in Las Palmas (Gran Canaria, Spain) and at a recent
conference on “Unaccompanied children: what protection at the European
level?” organised jointly by the Council of Europe and France Terre
d’Asile in Strasbourg, France.
8. In the course of preparing the report, the rapporteur visited
an emergency centre for unaccompanied foreign minors in the Canary
Islands (DEAMENAC Gran Canaria) and met with the Immigration and Naturalisation
Service of Schiphol Airport as well as with representatives of the
Dutch Council of Refugees, Nidos, Defence for Children and Samah
in Amsterdam, the Netherlands. She also sent out a questionnaire
to the national parliaments of the 47 member states of the Council
of Europe. She extends her gratitude to the 21 member and two observer
states which replied. However, she regrets that the replies received
came almost exclusively from the European Union member states, thus
reflecting the low awareness of the issue outside the European Union
countries, and underlining even more vividly the need to understand
the issues at stake and to share best practices among all member
states of the Council of Europe.
2 The current situation as regards unaccompanied
children in Europe
9. Unaccompanied migrant children (more commonly referred
to as “unaccompanied minors”
Note)
are a multifaceted and diverse group: they can be asylum seekers
who have fled their countries of origin because of armed conflicts
or persecution, often to avoid being forcefully recruited to militias
or other armed groups; they can be sent by their families to Europe
in search of better living conditions; they may be runaways; those
who arrive in Europe to be reunited with their family but who do
not fall under the official family reunification programmes; or
children who are victims of trafficking. They often arrive in Europe
for mixed motivations and/or move from one category to another.
10. The issue of unaccompanied children is marked by the absence
of quantitative and qualitative statistical information regarding
their situation in a large number of countries. The hands-on experience
of relevant non-governmental organisations (NGOs) and the little
data available from local and national institutions allow nonetheless
for some tendencies to be distinguished. Most unaccompanied children
arriving in Europe are boys aged 14 and over, originating from countries
such as Afghanistan, Albania, Algeria, China, Eritrea, Iraq, Morocco,
Nigeria, Romania, Russia, Somalia, Turkey and the Democratic Republic
of Congo. A growing proportion of these minors are thought to be
seeking to join (wider) family already living on the European continent.
Note Recently, the European Union, and
in particular the European Commission and the European Union Agency
for Fundamental Rights (FRA), published two complementary studies
on the situation of these children in the European Union. While
the first one, carried out by the European Migration Network, concerns policies
on reception, return and integration arrangements for and numbers
of unaccompanied children,
NoteNote the FRA’s
study, based on hundreds of interviews with such children and with
adults responsible for their care, provides a unique insight into
social and legal aspects of their life in the European Union as
well as the respect and protection of their rights.
NoteNote
11. However, a recent study by the Office of the United Nations
High Commissioner for Refugees (UNHCR) on asylum-seeking Afghan
children in Sweden reveals that very few children had the initial
intention to come to Europe at all. In around half of the cases,
the neighbouring countries, Iran and Pakistan, constituted the initially
intended destination, based on a rational choice of where the best
opportunities for survival may be found, whereas the final place
of destination seems frequently to have been decided at a later
stage, once already in Europe.
Note
12. Some European states are dealing with significant numbers
of arrivals every year, even if the only available statistical data
relates to those children who seek asylum. According to the UNHCR,
over 15 000 unaccompanied and separated children claimed asylum
in the European Union, Norway and Switzerland in 2009.
Note However, this is
likely to be the tip of the iceberg of unaccompanied children actually
in need of protection in Europe.
13. There exists no single definition of unaccompanied children
or minors; the application of different terms varies in international
reports, national legal frameworks, guidelines and bibliography.
The General Comment No. 6 of the United Nations Committee on the
Rights of the Child distinguishes between two types of minors – unaccompanied
and separated ones – and so does the Committee of Ministers Recommendation
CM/Rec(2007)9 on unaccompanied migrant minors.
14. According to these definitions, unaccompanied minors are children
(under 18) outside their country of origin who have been separated
from both parents and from other relatives and are not being cared
for by an adult who by law or custom is responsible for doing so.
Separated minors are children (under 18) outside their country of
origin separated from both parents and from previous primary caregivers,
but not necessarily from other relatives, and include children accompanied
by other adult family members.
Note
15. The term “unaccompanied children” will be used throughout
this report to refer to children who are under 18 years of age,
living in a country outside their country of origin and unaccompanied
by a legal representative.
16. All such children may be in a position of triple vulnerability:
as children above all; as children in the process of migration or
asylum; and, for many, as irregular migrants. In fact, unaccompanied
children fall into two broad categories: those known to the state
authorities and in their care, and those outside the radar of state authorities.
The latter are particularly vulnerable; living in fear of being
identified by the authorities and consequently of being detained
and expelled, they are exposed to risks of discrimination, exploitation
and abuse.
17. The lack of reliable statistical and profile information of
unaccompanied children is dangerous insomuch as it allows myths
and generalisations to develop, which can lead to wrong and ineffective
policy responses. Your rapporteur is therefore adamant that countries
and organisations should invest in getting a better picture of the
realities of the situation. An organised method of data collection
should be established that would enable apt comparison and take
into consideration the transnational dimension of unaccompanied
children moving or being transferred from one European Union member
state to another.
3 Major issues of concern
3.1 Legislative and policy framework: children first
or migrants first?
18. Under public international law, states have the exclusive
competence to establish laws governing the conditions of entry and
residence of foreign nationals on their territory. Nonetheless,
they must respect international treaties and norms regulating treatment
of persons within their jurisdiction.
19. There exists an abundance of conventions and regulations covering
a wide array of aspects concerning the protection of unaccompanied
children and their best interests.
NoteNoteNote However,
these measures are not always effectively transcribed into national
law or put into practice. The European Union provisions for the
protection of the rights of unaccompanied children are dealt with
in a fragmented way across different laws, giving rise to some gaps
in protection.
20. With a few exceptions, no national legislation deals with
unaccompanied children in a comprehensive manner. Most commonly,
unaccompanied children are dealt with under two, often contradictory,
sets of legislation: immigration/asylum legislation and child-protection
legislation. All too often, national authorities resort to immigration
legislation first and child-protection legislation second, which
has dire consequences for children.
Note It
is noteworthy that ALL respondents to your rapporteur’s questionnaire
pointed first and foremost to immigration and asylum legislation,
and only a few referred additionally to child-protection legislation.
21. There are also considerable divergences in member states’
policies and practices. An unaccompanied child may have a completely
different experience depending simply on where he or she is in Europe.
These fundamental disparities in treatment exacerbate movements
of children from one country to another without protection of any
real kind.
Note
22. Sometimes divergences exist even within member states. For
instance, in some countries there are two sets of legislation applying
to unaccompanied children, which can mean having at least two government
bodies in charge of them. This often means that children fall through
bureaucratic loopholes. Social policy ministries and interior or
immigration ministries (the two types of bodies typically in charge)
have inherently different approaches and often there is no in-built
communication system between these different authorities. Similarly, social
workers who are supporting and protecting children are increasingly
required to behave as if they are immigration officials, despite
the fact that these roles are ultimately incompatible. Sometimes
problems also arise between regional and central authorities, with
both pointing fingers at each other, neither taking responsibility
for the children, who are in turn left without necessary protection.
Note
23. It flows from the above that Council of Europe member states
need to make sure that their policies do not undermine but help
to realise their obligations under applicable human rights treaties
while these children are on their territory. Member states must
fulfil their international obligations to protect children, including
from abuse, ill treatment or neglect; and they must be held to account
for their actions.
24. Your rapporteur finds that if the European Union governments
are to take the priorities they set under the Stockholm Programme
and the 10-principle Action Plan on Unaccompanied Children seriously,
and if the Council of Europe member states are to truly place the
principle of the best interest of the child on a pedestal, then
the focus needs to shift from policies and practices which concentrate
on immigration control and status as a primary consideration to
ones that make the welfare of the child central to all decisions
made concerning unaccompanied children. In short, an unaccompanied
child should be treated first as a child, and only then as migrant.
An unaccompanied child must have the same rights as other children.
25. The latter would require a major shift in attitudes as well
as harmonisation of national legislation and practices as regards
the division of responsibilities between competent national authorities
and their responses to the needs and vulnerabilities of unaccompanied
children.
3.2 Concerns related to the arrival of unaccompanied
children
3.2.1 First contact with the unaccompanied child: initial
identification and access to the territory
26. There exist wide disparities among European states
in practices with regard to the reception and access to their territory.
Sweden, for instance, authorises unaccompanied children to enter
the territory in order to be issued with the application of general
procedures. Likewise, the United Kingdom does not detain or send children
back to the border if their minority is confirmed at the initial
identification. Spain and France, on the other hand, may refuse
access to their territory to foreigners (including unaccompanied
children) who are stopped at airport borders, land borders or ports
if they cannot present the necessary entry documents.
27. The situation is the toughest in extra-territorial zones,
such as for example the Roissy Charles de Gaulle Airport in France,
where unaccompanied children may be sent back when getting off the
plane, during gateway controls, applying the principle of responsibility
of the carrier. According to a recent report,
Note around 30% of unaccompanied minors
arriving on the territory by air are sent back without real guarantee
of welcoming conditions upon returning home. Often they are returned,
without the due right to appropriate procedures, to countries they
merely transited from.
28. This practice has been criticised by a number of refugee organisations
and the Parliamentary Assembly itself as a possible violation of
the principle of non-refoulement.
When it is applied to unaccompanied children, it is even more likely
to put their life and security in serious danger.
29. Your rapporteur is adamant that in no circumstances should
an unaccompanied child be refused entry to the territory of a Council
of Europe member state. On the contrary, upon coming into contact
with a person who is potentially a minor, the border authorities
should immediately refer this person to specialised services to
identify him or her, ascertain the reasons and individual circumstances
why he or she is seeking entry into a member state and establish
their protection needs, and ultimately identify a durable solution
in the child’s best interest. Likewise, prompt steps should be taken
to appoint a legal guardian and to place the child in suitable care
and reception structures, similar to the procedures foreseen for
national children who are in the same situation.
3.2.2 Age assessment
30. Age determination is a key gateway to special protection
and assistance for unaccompanied children. In practice, however,
there is no consensus on standards or a common approach to age assessment
between or even within member states.
31. The United Nations Committee on the Rights of the Child established
in 2005 that age assessment of an unaccompanied child should not
only take into account physical appearance, but also psychological maturity.
The assessment should be conducted in a scientific, safe, child
and gender-sensitive and fair manner, avoiding any risk of violation
of the physical integrity of the child. It should give due respect
to human dignity, and, in the event of remaining uncertainty, should
accord the individual the benefit of doubt; if there is a possibility
that the individual is a child, he or she should be treated as such.
Note
32. Despite these provisions, state practices vary. Some states
practise age assessment as standard practice, even where there is
actually no doubt. Assessment procedures apply a variety of methods,
most commonly checking documentary evidence, interviews or medical
examinations (for example by magnetic resonance tomography, bone
and dental assessment and radiological testing), or a combination
of these. However, medical procedures bear a level of uncertainty
and can therefore not be considered as fully conclusive. Nevertheless,
some governments (for example Spain, France, Italy and Romania)
predominantly use medical examination only, involving a risk that
an unaccompanied child is arbitrarily declared an adult. Furthermore,
procedural inconsistencies exist in the mechanisms and variations
of the quality of age assessment itself. There is also little consistency
in the use or interpretation of documentary, expert and medical
evidence in the age-assessment procedures. It also happens that
different national authorities (for example immigration, education,
health and child welfare) have diverging views on the validity of
assessment methods used and results. Finally, age assessment is
only rarely subjected to independent review.
33. Most European states have legal provisions for age determination
and require the informed consent of the individual. Refusal to undergo
a test may have a negative impact on the asylum procedure. In Finland
or Germany, for example, refusal to undergo age assessment medical
tests may result in the applicant being treated as an adult, unless
there is a valid reason for the refusal. In most other European
countries, the minor is accorded the benefit of the doubt and the
lowest possible age is recorded.
34. All in all, most of the above methods are controversial and
contested among policy makers, the courts and the scientific community.
35. It therefore seems appropriate that member states should avoid
age assessment as standard practice, and only apply it where there
is reasonable doubt about the person being underage. Where age assessment is
necessary, it should involve a multidisciplinary evaluation over
a period of time (ideally a minimum of one week) and take into account, inter alia, the child’s behaviour,
migration history, and way of interacting with adults. Medical examinations
should only be performed with the consent of the child or his or
her guardian after any possible health and legal consequences have
been explained in a simple, child-friendly way and in a language
that the child understands. It is also essential that age assessment
should be undertaken in an age- and gender-appropriate manner by
independent experts familiar with the child’s cultural background,
and in full respect of the child’s dignity. Age assessments must
indicate the margin of error involved in examination results. In
cases of doubt, the child must be given the benefit of the doubt.
He or she must also have access to a lawyer and legal procedure
to challenge flawed results.
36. Finally, your rapporteur deems it important that a common
approach to balance the current divergent approaches and practices
should be adopted. To this end, she supports the recent recommendation
of the UNHCR Bureau for Europe’s Working Group on Unaccompanied
and Separated Children to fill the gap and draft minimum standards
for safeguards in age-assessment procedures. She also welcomes the
European Union project, under the Action Plan on Unaccompanied Children,
to issue best practice guidelines in collaboration with scientific
and legal experts and in co-operation with the European Asylum Support
Office.
3.2.3 Detention of unaccompanied children
37. All major international and national human rights
monitoring bodies have for years advocated the use of detention
only as the last resort and never on the basis of a child being
unaccompanied or lacking immigration status. The Assembly’s recent
Resolution 1707 (2010) on
the detention of asylum seekers and irregular migrants in Europe
explicitly outlined that unaccompanied minors should never be detained.
38. Regardless of this, detention of unaccompanied children is
still a common practice in several member states. Children are often
detained together with adults and have no legal advice or any form
of counselling available to them.
39. The European Union Action Plan indicates detention as a measure
of last resort, if this is for the shortest appropriate period of
time and taking into account the best interests of the child as
a primary consideration. Your rapporteur strongly believes that
detention can never be in the child’s best interest. On those grounds, detention
of children for reasons relating to their residence status, or their
lack of it, should simply be abolished. This should include detention
at the border and detention pending deportation in, for example,
international zones, detention centres, police cells, prisons or
in any other special centres.
40. Detention should be replaced with placement in appropriate
reception and care arrangements, with living conditions suitable
for children’s needs (concerning nutrition, health, hygiene, education,
leisure, etc.) and for the minimum of time needed. Children placed
in reception centres should be accommodated separately from adults.
3.2.4 Identification and assistance to victims of human
trafficking
41. Unaccompanied children are particularly at risk of
being trafficked and exploited, which can take the form of forced
labour, of servitude or slavery, or even sexual exploitation. In
July 2010, the Council of Europe Convention on the Protection of
Children against Sexual Exploitation and Sexual Abuse (CETS No. 201) entered
into force, and has to date been ratified by 10 and signed by 31
member states. In December 2010, a new European Union directive
on trafficking was agreed upon, which includes provisions on how unaccompanied
children should obtain assistance and protection when they are victims
of trafficking.
42. Your rapporteur calls for the ratification of the Council
of Europe Convention and the full and proper implementation of the
newly agreed European Union provisions, especially as regards introducing
specific measures and indicators permitting the early identification
of unaccompanied children who are victims of trafficking. Child
victims of trafficking should benefit from unconditional care, which
is adapted to their needs and assures their protection.
3.2.5 Initial assistance and care for unaccompanied
children in countries of transit and destination
3.2.5.1 Access to child-friendly forms of information
and legal representation
43. In a recent publication, the European Union Fundamental
Rights Agency reports a considerable lack of adequate, easy to understand,
child-friendly information regarding the legal procedures or the
opportunities for unaccompanied children to stay in the host country.
Even where information is provided to these children upon arrival
or at a later stage, very often they do not understand it. As a
result, they frequently turn to possibly unreliable information
sources, such as compatriots, peers or even those who have smuggled
them.
44. The European Union Action Plan on Unaccompanied Children establishes
that “reception measures and access to relevant guarantees should
apply from the moment an unaccompanied minor is detected at external borders
or on EU territory until a durable solution is found”. Guardianship
and legal representation of the child are of crucial importance.
45. Your rapporteur finds that child protection services should
provide without delay legal, social and psychological support, intercultural
mediation and interpretation for unaccompanied children to ensure
the child’s protection and well-being at all times. Children should
be informed immediately upon arrival or interception, individually
and in a language and form that they can understand, about their
right to protection and assistance, including their right to seek
asylum or other forms of international protection, and the necessary procedures
and implications.
46. It is equally important to promptly designate a legal guardian
who would safeguard the child’s best interest. In addition, free
legal aid should be provided by the state during the period that
the child’s case is under examination or review by the judicial
and police authorities. Furthermore, as soon as the unaccompanied
child comes into contact with immigration and social services and
when the child’s best interest and protection needs are defined,
there should be a possibility to also identify durable solutions
for the child (see also chapter 4).
3.2.5.2 Role and qualifications of guardians
47. The timely provision of an appropriate guardianship
is fundamental in order to ensure the protection of rights of unaccompanied
children. Guardianship is also pivotal for the concrete application
of the best interest of the child and it is central to establishing
appropriate action for resolving the situation for any unaccompanied child.
48. It is to be regretted that, regardless of the many efforts
to harmonise the system of guardianship, guardianship functions
are to this day not commonly defined, interpretations and understanding
of this role differ, and the system is in many cases dysfunctional.
Those who are meant to protect the best interests of the child often
lack the necessary powers or expertise, or worse, do not challenge
government action and as a result fail to serve children’s best
interests.
Note
49. Furthermore, even if this is being increasingly contested,
Note in several countries children lack
the legal capacity to challenge deportations, to file an asylum
application, or to appeal a rejected claim for asylum. Besides the
lack of legal capacity, many children simply do not understand the
immigration procedure they are caught up in and the rights they
may claim. Unless guardians and lawyers assist these children, they
may never be able to access their entitlements or challenge deportation
decisions that send them to ill treatment, exploitation and neglect.
Note
50. Your rapporteur believes that the Council of Europe should
further encourage its member states, as well as the European Union,
to adopt common standards on guardianship and legal aid for all
unaccompanied children so that children can defend their rights,
including when faced with deportation decisions.
51. These common standards should establish that as soon as a
child is identified as unaccompanied, a person should be appointed
by the competent authorities to act as a legal guardian who is mandated
to safeguarding the child’s best interest, empowered to represent
these best interests, and to have a say in all decision making regarding
the unaccompanied child. Guardians should be independent from immigration officials
and possess expertise on the rights of children and migrants. They
should undergo regular training and be subject to regular and independent
monitoring.
3.2.5.3 Access to basic services
52. As recognised by the United Nations Convention on
the Rights of the Child, member states owe a special duty of protection
and assistance to unaccompanied children. They have an immediate
obligation to address the child protection concerns, such as providing
safe accommodation, protecting children from exploitation, meeting
their medical needs and providing legal assistance. The rights and
needs of these children to assistance often arise even before the
appropriate protection route or long-term solution options are known.
Note
53. Various NGOs report, however, that in many cases unaccompanied
children are de facto excluded from the social services set up for
them and end up living in situations of social exclusion.
54. There are different models for the reception of separated
children. Contrary to the UNHCR Guidelines on Determining the Best
Interests of the Child, European countries seem to privilege the
placement of separated children in reception centres rather than
foster families, at least for children who are over 14 years of
age. In central and eastern Europe, where the number of unaccompanied
minors has been very limited until recently, specialised care for
unaccompanied minors is still largely lacking.
55. Closely linked to placement of unaccompanied minors in accommodation
centres is the issue of disappearances, which is a symptom of children
lacking durable solutions rather than a problem in its own right. Many
Council of Europe member states, including Belgium, the Czech Republic,
Finland, Ireland, Italy, the Netherlands, Poland and the United
Kingdom have experienced a disturbing number of disappearances from the
accommodation provided. It is observed that most disappearances
occur within the first days of arrival at the centre, and even before
the guardian has been appointed. A number of children who disappear
are runaways but some are probably intercepted or abducted by smugglers
or traffickers. In both cases they are at risk of neglect and ill
treatment. Police and judicial authorities are, however, often powerless
when trying to trace these young people.
56. Certain types of accommodation incite more disappearances.
Your rapporteur is aware of the paradox that whilst smaller and
more open (loose control) type accommodation for unaccompanied minors
have been considered preferable, these also tend to attract traffickers,
who are well aware of the locations of such centres. This concern
was raised by a number of specialised NGOs during your rapporteur’s
visit to the Netherlands. In 2006-2007, more than 20 Nigerian girls
disappeared in the Netherlands from these small centres. Concerned that
these disappearances were linked to trafficking, the Aliens Police,
the Dutch Refugee Council, the guardians, reception centres, and
the Royal Constabulary joined together to co-operate against trafficking
of unaccompanied minors. These endeavours, and notably the introduction
of protected reception at the beginning of 2008, seem to have borne
fruit, as the disappearances have reportedly since decreased.
57. Your rapporteur therefore encourages member states to devote
more resources to establishing reception arrangements for unaccompanied
minors that provide, on the one hand, the necessary legal, social or
psychological services that they need and, on the other hand, safety
and physical protection of children from criminal networks.
58. Unaccompanied children also face difficulties accessing adequate
health care. According to PICUM, only in Spain does legislation
fully conform to the international standards guaranteed by the Convention
on the Rights of the Child. In Spain, access to health care for
all children, documented or not, is the same as for Spanish children.
In some other countries, in cases where the protection of the child
has been established and the unaccompanied child is institutionalised,
minimum health care is generally provided for free, although some restrictions
may apply, for example requiring that the child is regularly attending
school. However, in the majority of cases access to health care
for unaccompanied children does not differ much from that of irregular migrants
in general, which means that health care is mostly provided in case
of emergency only. The interpretation of urgent care varies from
country to country, and even from the discretion of one doctor to another.
Access to specialised services, for instance dental or ophthalmic
care, has proved to be particularly problematic.
Note Access to care often depends on the goodwill
of the doctor rather than on a correct interpretation of law.
59. Your rapporteur wishes to emphasise that access to adequate
health care must be guaranteed to all children without discrimination
and irrespective of their legal or other status, and incorporate
mandatory professional interpretation and intercultural mediation
support. A thorough assessment of health needs should be conducted
as soon as the unaccompanied child enters into contact with the
authorities, while ensuring their informed consent. The results
of this assessment should in no way influence or negatively affect
the outcome of any child’s asylum or protection claim.
3.2.6 Access to asylum and international protection
60. All unaccompanied children who have entered any of
the Council of Europe member states have by law access to the asylum
procedure, directly or through their legal guardian. In practice,
however, a number of children never manage to gain access to the
asylum procedure due to practical or legal hurdles: they might not be
properly informed about how to apply for asylum; they might not
be in the right place to apply for asylum; they might not do so
in time; they might be advised not to apply as they are considered
to be sufficiently protected within the child-welfare system; or
they may not have a legal guardian to act on their behalf, due to either
administrative delays or lack of appropriate legislation.
61. It is essential that all unaccompanied children can access
the asylum process unconditionally, removing all obstacles linked
to the eligibility of the application. Member states should guarantee
the access to asylum procedures immediately upon the arrival of
an unaccompanied child, but also at any later stage if the child
is intercepted on the territory of the member state. Unaccompanied
children who do not appear to be in need of international protection
should not automatically be referred to asylum procedures, but should
be protected pursuant to other relevant child protection mechanisms
for children deprived of a family environment.
3.2.6.1 Protection from child-specific forms of persecution
62. In general, one can observe a positive tendency as
regards global awareness about violence, abuse and discrimination
experienced by children, and many national asylum authorities are
increasingly acknowledging that children may have refugee claims
in their own right. Nevertheless, access to effective protection
of children, including unaccompanied children, against refoulement remains a continuing
problem in many Council of Europe member states.
63. It is widely recognised that children may be subjected to
specific forms of persecution that are influenced by their age,
lack of maturity or vulnerability. The fact that the asylum claimant
is a child may be a central factor in the harm inflicted or feared.
This may be because the alleged persecution only applies to, or disproportionately
affects, children or because specific child rights may be infringed.
The UNHCR’s Executive Committee has recognised that child-specific
forms of persecution which fall under the terms of the 1951 Geneva
Convention may include underage recruitment, child trafficking and
female genital mutilation. Other examples include, but are not limited
to, family and domestic violence, forced or underage marriage, bonded or
hazardous child labour, forced labour, forced prostitution and child
pornography. Such forms of persecution also encompass violations
of survival and development rights as well as severe discrimination
of children born outside strict family planning rules and of stateless
children as a result of loss of nationality and attendant rights.
64. While children may face similar or identical forms of harm
as adults, they may experience them differently. Actions or threats
that might not reach the threshold of persecution in the case of
an adult may amount to persecution in the case of a child merely
because he or she is a child. Immaturity, vulnerability, undeveloped
coping mechanisms and dependency as well as the differing stages
of development and hindered capacities may be directly related to
how a child experiences or fears harm. To assess accurately the
severity of the acts and their impact on a child, it is necessary
to examine the details of each case and to adapt the threshold for
persecution to that particular child.
Note
65. The Assembly, in its Recommendation 1703 (2005) on protection
and assistance for separated children seeking asylum regretted that,
“at substantive level, most Council of Europe member states do not
recognise child-specific forms of persecution, such as forced recruitment
in armed forces, forced child labour, female genital mutilation,
forced marriages or forced pregnancies, as persecution under the
terms of the 1951 Geneva Convention relating to the Status of Refugees”.
The same recommendation encouraged the Council of Europe to adopt
a single coherent instrument on the issue of separated children
seeking asylum, which would remedy the above deficiencies.
66. The United Nations Committee on the Rights of the Child has
also emphasised, in its 2005 General Comment No. 6, that the refugee
definition must be interpreted in an age-sensitive manner, “taking
into account the particular motives for, and forms and manifestations
of, persecution experienced by children”. More recently, the concept
of child-specific persecution has been enshrined in the European
Union’s legal framework.
Note As
a result, the term has been transposed into national legislation
throughout Europe. Yet, only a handful of countries have adopted
guidelines to assist decision-makers in assessing protection claims
from children.
67. Regrettably, studies show that child-specific persecution
is not sufficiently taken into account in practice and that children
are often granted temporary humanitarian protection, rather than
refugee status, even when they may have a strong claim. In many
countries, the lack of formal recognition of refugee status will
likely affect the child’s access to services, education and long-term
residency options, and – in the long run – to durable solutions.
68. In order to improve current practice, there is an urgent need
for those member states that do not yet recognise child-specific
forms of persecution to revise their approach and end the double
jeopardy which is denying children fleeing such practices the right
to seek refuge in other countries. It is also crucial that more be
done to promote the existing UNHCR and other guidelines and good
practice in this field in order to recognise the rights of children
and ensure protection including a durable solution that provides
long-term safety and stability.
69. Council of Europe member states need to establish a harmonised
child-sensitive asylum system, which includes procedures that take
into consideration the additional difficulties children have in
withstanding trauma and in expressing a coherent account of their
experiences and child-specific experiences of persecution.
3.2.6.2 Legal assistance within asylum procedures
70. Legal representation and assistance within asylum
procedures in Council of Europe member states is assured in a very
diverse way. Relevant European Union legislation
Note demands that a minor should be represented
by a legal representative or guardian wherever possible, to inform
the minor and to intervene during the interview. The designation
of a legal representative is, however, not obligatory in cases where
the child has been empowered with a lawyer, if the case involves
a minor of more than 16 years of age capable of representing his
or her application, or if the minor is married. The United Nations
Committee on the Rights of the Child recommends that unaccompanied
children be represented by a lawyer in all administrative and judicial
proceedings.
71. Nevertheless, practices differ. In Italy, for example, the
appointment of a guardian is compulsory in order for an application
for asylum to be examined, whereas in Greece, children over 14 years
of age can draw up an application for asylum by themselves. In very
rare cases, guardians have legal knowledge or have undergone specific
training in child-specific forms of persecution or determination
of the best interest of the child. It therefore follows that unaccompanied
children in asylum and all other judicial or administrative proceedings
should be represented by a lawyer, provided free of charge by the
state, in addition to their legal guardian.
3.2.6.3 Processing the application and reception of unaccompanied
asylum-seeking children
72. Asylum interviews should be conducted with primary
consideration for the best interest of the child, in a child-friendly
manner and in a non-intimidating environment. Staff involved in
status determination procedures of children must receive appropriate
training and country of origin information should include information
on the situation of children, including those belonging to minorities
or marginalised groups.
73. Member states should make every effort to process asylum applications
by unaccompanied children as the highest priority and as speedily
as possible, not exceeding six months. They should ensure that accelerated asylum
determination procedures are not applied to children.
74. At the end of the process, unaccompanied children should receive
adequate and clear explanations of the decisions affecting them,
in a language and manner that they understand, including an explanation
of the underlying reasons. They should be able to challenge decisions
regarding their asylum application.
3.2.6.4 Implementation of the Dublin II Regulation
75. The European Union Dublin II Regulation
Note establishes
that it is the first state which the applicant has entered which
is required to process the application for asylum. Under this regulation,
certain states (mostly those that serve as entry points of immigration)
face the challenge of dealing with numbers of asylum applications
that are beyond their capacities, or they suffer from structural
deficiencies and have problems meeting their human rights obligations.
76. Thus, for example, the UNHCR advises governments to refrain
from returning asylum seekers to Greece under the Dublin Regulation
or otherwise. More recently, the Council of Europe Commissioner
of Human Rights expressed his support for the European Commission’s
proposal to introduce a mechanism for the temporary suspension of
transfers, which could give states that are under particular strain
short-term relief from their responsibilities under the Dublin Regulation,
as well as the possibility to seek financial or technical assistance
to cope with the situation.
77. The Assembly’s
Resolution
1695 (2009) on improving the quality and consistency
of asylum decisions in the Council of Europe member states also
called upon the European Union to revise, as a matter of urgency, the
Dublin II Regulation and the “safe country” mechanism and to promote
responsibility sharing amongst European Union member states to relieve
the burden on those states which are struggling to handle large-scale arrivals
of asylum seekers.
78. Your rapporteur shares these positions and underlines that
the Dublin II Regulation should be revised and only be applied to
unaccompanied children if transfer to a third country is in the
child’s best interest.
3.3 Concerns related to stay in host country
3.3.1 Right of residence
79. In accordance with the 1951 Geneva Convention relating
to the Status of Refugees, all children who have expressed a wish
for asylum are authorised to remain on the territory of the member
state during the processing of their application. For unaccompanied
children who do not apply for asylum, some states recognise a right
for them to stay. For example, France and Spain recognise that unaccompanied
children are automatically in a legal situation on their territory
and therefore the obligation to obtain a right to remain is not applicable
to them. Similarly, in Italy and Romania, all unaccompanied children
benefit from an automatic right of residence. This is not the case
in some other countries, such as Greece, Hungary, Sweden or the
United Kingdom, where limited access to asylum or a negative asylum
decision may put children in an irregular situation.
80. The right of residence is closely linked with family tracing
and reunification. Whereas the recent recast proposal of the Dublin
II Regulation strengthens the obligation of European Union countries
to trace family members of unaccompanied children, in reality family
reunification rarely occurs. Sometimes this is because reuniting
with their family in the country of origin is not considered to
be in the best interest of the child, either because of mistreatment
or neglect in the past or out of fear for adverse effects on their
asylum claim or exposing their family to harm. However, in many
cases, it is because it has proven impossible to trace the family.
Similarly, whilst considered as a possible means for the remainder
of an unaccompanied minor’s family to subsequently enter the European
Union, there is little evidence to suggest that requests for family reunification
by an unaccompanied minor once granted refugee status occur to any
large extent.
Note
81. Your rapporteur believes that further harmonisation of practices
towards granting a right of residence on the territory for unaccompanied
children until adulthood would be desirable.
3.3.2 Reaching adulthood
82. No legal instrument currently governs the transition
of unaccompanied minors to the majority age, and national practices
are divergent. Your rapporteur identifies two main problem areas
which affect these young adults.
83. First, those unaccompanied children who are under national
welfare systems principally lose their “primary” support systems,
including guardianship support and accommodation. The state responsibility
is transferred from children’s/social services to immigration authorities,
which will subsequently decide on whether or not the young adult
has the right to an extended stay in the country. Their financial
support is reduced or terminated, and access to education diminishes,
pending the outcome of any regularisation opportunity.
84. Second, coming into adulthood also changes the whole context
of immigration determination: unaccompanied minors once attaining
adulthood can no longer benefit from procedural safeguards; they
have no entitlement to family reunification; they are exposed to
an increased risk of detention; and the safeguards regarding return
cease to exist. In short, unless their residence permits are extended
on individual compassionate or humanitarian grounds, the former
unaccompanied minors automatically join the ranks of irregular migrants
who are expected to return voluntarily to their countries of origin
or risk forced return as an adult under the Return Directive.
85. It goes without saying that, in the case of those unaccompanied
children who have not sought protection before the age of 18, once
they reach maturity, they lose all safeguards that might have been
applied under the best interest of the child clause, and their passage
to total irregularity is automatic.
Note
86. The result of this is that the majority of unaccompanied children
in state care (mostly those whose asylum claims have been declined
but whom the states have not been able to return and those in the
process of asylum who know that there is a high probability that
their requests will be rejected) simply “vanish” from care centres
shortly before their 18th birthday. Your rapporteur finds it deplorable
that states’ incapacity to provide more effective and extended protection
of the child’s best interest or more durable solutions puts these youngsters
directly at the mercy of trafficking networks and criminal gangs,
leading to the high likelihood of their exploitation and abuse.
87. However, in reality, the situation is much more complex. Your
rapporteur’s survey on this subject reveals that the possibility
or not to remain in the country beyond the age of 18, alongside
the existence of a life project for the child, is the most determining
factor for the fate of unaccompanied children in Europe.
88. Considerable differences exist in how member states currently
address this issue. Some (like France) grant the right to apply
for citizenship to unaccompanied minors who have continuously stayed
in state care for a certain period of time, or have been brought
up by a citizen of the country concerned during the same period. Some
offer the possibility to apply for permanent residence (for example
the Czech Republic), requests being reviewed on an individual basis.
Most commonly, however, states grant the possibility for a temporary extension
of stay (for example Finland, France, Spain and the United Kingdom),
subject to confirmation that the person continues to need international
protection and if there are individual compassionate grounds to grant
a residence permit. In Italy, a residence permit may be granted
to those who have either been entrusted to a family or are subject
to protection, or to those who have been present in Italy for at
least three years and have participated in an integration project
of at least two years’ duration.
89. On the other hand, as a general rule, when a residence permit
is not issued, the former unaccompanied minor is under an obligation
to leave (Germany, France, Italy, Norway, the United Kingdom). Obtaining
refugee status is in some cases the only permanent solution after
the age of 18 (Slovak Republic, Switzerland, Turkey).
90. Some “new Schengen” countries, such as Estonia, Latvia or
Slovenia, which have had little experience with the issue, claim
not to have expelled a single minor on reaching adulthood. In Greece,
on the contrary, where the annual inflow of unaccompanied minors
reaches many thousands, children reaching adulthood automatically
lose their subsidiary protection and are expelled or usually end
up in an irregular situation.
91. As regards social benefits, the Czech Republic and the United
Kingdom also provide aftercare in terms of accommodation and financial
assistance. In the Czech Republic, unaccompanied minors can stay
in accommodation and educational facilities under state care up
to the age of 26. Some countries (for example Belgium and Poland)
transfer those who have applied for asylum from childcare centres
to refugee centres or grant both the right to live outside the centre
and to receive an allowance. These are a few examples of best practices.
92. But all in all, your rapporteur finds the current approach
by many member states, whereby they make considerable investments
in the education and care of an unaccompanied child only to return
that child when he or she turns 18, to be of benefit to nobody.
Europe has a structural need for migrants, not least because of its
declining population; therefore, what better means is there than
to use the potential of minors who have been educated and trained
in the country, and who have a long-term life project, to integrate
them in the local labour market and societies. As has been pointed
out by the Separated Children in Europe Programme in its Statement
of Good Practice, the solution is unlikely to be durable if it is
based on a decision to allow the child only to remain up to their
18th birthday, even if the stay can be temporarily extended.
93. It therefore appears highly relevant that the potential of
the child’s long-term integration in the local community be taken
into account as a key element when deciding on the child’s legal
stay in the host country on reaching adulthood. The criteria to
be considered should include: the length of time spent in the country
of reception, the child’s life project, the level of integration
and education pursued, the emotional ties of the person with the
host family or society, and the young person’s own views on his
or her future.
94. A “buffer age” between the age of majority and when a solution
is found should be established, which would enable the young person
– at least for a specified period of time – to continue education
or training, or to compete on the labour market on the same basis
as the national population. Assistance should be extended until
that durable solution is met, even if it goes beyond the child’s
18th birthday.
95. Unaccompanied children who become adults during the course
of the asylum status determination process should continue to benefit
from the same special determination procedures as those who are
under 18 years of age. However, states should eliminate unnecessary
delays that can result in a child reaching the age of majority during
the process.
3.4 Concerns regarding return to country of origin
96. Return of unaccompanied children to their families
or country of origin is identified as one of the possible durable
solutions, provided this is in the child’s best interest and if
safeguards for the safety and well-being of the child upon his or
her return are guaranteed. And yet, the return of unaccompanied
minors is also one of the most contentious issues where the flaws
of the applicable regulations, boundaries of member states’ freedom of
action and failures to implement human rights standards become apparent.
97. Problems mostly arise in areas where little or no common understanding
or practices exist. These include defining the best interests of
the child; guaranteeing safeguards of human rights and dignity;
defining what constitutes adequate care in the country of origin,
and the applicability of the return orders.
98. States often take the view that, unless there is an asylum
claim, it is almost always in the best interest of a child to return
to family; in other words, there is no need for a thorough individual
assessment. Your rapporteur wishes to argue that return to the family
may but does not automatically constitute the best interest for
the child even if no serious ground for protection is established.
Any return should be conditional upon a careful assessment of the
situation that the child would find upon return, and of whether
the child’s family or childcare agency in the country of return
would be able to provide appropriate care. If no parents or members of
the extended family are identified, return should only take place
if secure, concrete and adequate care and reintegration arrangements
in the country of origin have been established in advance. The assessment
of return conditions should be conducted by a professional and independent
organisation or person and should be objective, non-political and
aimed at ensuring respect of the principle of the best interests
of the child. The child’s own views and those of his or her guardian
should also be heard.
99. In cases where return of a child is decided to be in the child’s
best interest and conditions are guaranteed, the decision to return
an unaccompanied child should be reasoned and notified to the child
and his or her legal guardian in writing, together with information
on how to appeal against it. The child and/or his or her legal guardian
should have the right to challenge the return decision in court.
Such an appeal should have suspensive effect and be extended to
the lawfulness and the merits of the decision.
100. Return to the country of origin is not an option if it would
lead to a risk that such return would violate the child’s fundamental
human rights. In this respect, your rapporteur shares the concern
of leading international organisations and agencies as regards the
setting up of reception centres in the countries of origin so that European
Union countries can send unaccompanied children back if they cannot
trace family members. Such centres have been set up in Africa (the
Democratic Republic of Congo, Angola), Europe (Romania, Bulgaria), Afghanistan
and Iraq. According to Save the Children, there are serious concerns
that the mere existence of these reception centres could serve as
an automatic justification to refuse residence permits to unaccompanied minors,
as there is a “safe and adequate place” for the child to return
to. Some states have signed readmission agreements specific to minors
with Morocco, Senegal, Bulgaria or Romania, but which lack transparency
and safeguards for children.
101. Children should never be returned to places where their safety
and well-being is at risk. Without proper guarantees for safety
and reintegration, the reception centres in countries of origin
do not cater for the child’s best interest. Most of the countries
where such centres have been set up are dysfunctional, war-torn
or struggle to operate any child protection system at all. Without
proper protection and opportunities for reintegration there is a
clear risk that the children may simply disappear from institutions
and try to undertake dangerous journeys again.
Note
102. Human Rights Watch also argues that investing in such a way
in the returns of children may not only be a waste of money, with
those returned leaving their countries again soon afterwards, but
it may also put children back at serious risk. Besides, European
governments remain directly responsible if the child is ill-treated,
detained or disappears upon arrival if they ignored relevant information
before returning a child and did nothing to mitigate such risks.
The European Court of Human Rights, in a decision against Belgium
Note concluded
that governments are obliged to take “measures and precautions”
against the inhuman treatment of a returned child. Therefore, the
well-being of the child following return should be monitored by
appropriate authorities or agencies on the spot, who should liaise
with and report to the authorities of the country from which the
child has been returned. Furthermore, instead of seemingly quick
and easy solutions that focus on returns, increased investments
in services and institutions accessible to all children in their
home countries are needed.
Note
103. Another area of concern is the applicability of return orders.
Notwithstanding the European Union policies to encourage the return
of a higher number of unaccompanied children who are deemed not
to need international protection, very few states have actually
returned minors in recent years, either forcibly or voluntarily.
Note The
major reason is that even where deportation orders are issued, in
most cases they cannot be executed because of the absence of identity
and/or travel documents, the child’s willingness to co-operate in
the departure, difficulties in tracing the child’s family and the
impossibility to obtain a travel document from the countries of
origin in time. Thereby many orders remain pending until children
reach the age of 18.
104. Such “aging out” is definitely not a meaningful or durable
solution, either for the states or for the children concerned, as
it often leads to prolonged detention, disappearances and nourishing
of trafficking networks, as already referred to in chapter 3.3.2.
105. Family reunification, whenever feasible, is generally regarded
as being in the best interest of the child. Once a family is traced,
family relationships verified and the willingness of the child and
the family members to be reunited has been confirmed, the process
is normally not delayed, unless there is reasonable doubt that the child
would be exposed to abuse or neglect. However, opportunities for
unaccompanied children to be united with “wider family” are sometimes
lost because of a narrow definition of “a family” applied by authorities
in many European countries. Possibilities for family reunification
activities beyond the country of origin are also often limited.
However, migrant families are often split across Europe, with members,
including the child, having an irregular status. While the unaccompanied
child or his/her family remains in an irregular situation, it is
almost impossible to provide appropriate services or family unification
support. All in all, there is a lack of instruments regarding family
reunification of unaccompanied children across Europe.
106. In this regard, your rapporteur deems it important to encourage
a broader interpretation of the term “family” when considering family
reunification and an extension of family reunification activities
beyond the country of origin, approaching it from a humanitarian
perspective of exploring wider family links in the host country
and third countries.
4 Establishing durable solutions
4.1 Identification of appropriate procedures and tools
for finding durable solutions
107. Identifying the most appropriate durable solutions
for an unaccompanied child generally requires carefully balancing
many factors. Decisions on voluntary repatriation, family reunification
or relocation to a third country or integration in the host society
are likely to have a fundamental and long-term impact on the child.
All these options for a durable solution should be considered on
an equal basis.
108. The identification of durable solutions should start immediately
when the unaccompanied child first comes into contact with immigration
and specialised services. The UNHCR 2008 Guidelines on Determining the
Best Interest of the Child indicate that, before taking a decision
on which option of durable solution to apply in the case of a particular
unaccompanied child, a best interest determination must be carried
out to ensure sufficient focus on the child’s rights when choosing
the most appropriate durable solution and the right time for it.
The assessment must be carried out on a case-by-case basis and with
the consent of all parties concerned: immigration authorities, social
services, the child’s legal guardian and the child himself/herself.
109. The UNHCR guidelines also mention that if it is not possible
to determine which durable solution is in the best interest of the
child, the temporary care arrangements should be maintained and
the case should be reviewed within one year at the latest.
110. When determining the best interests of the child, it is important
to consider all rights of the child. In addition to the norms contained
in the Convention on the Rights of the Child, there are other relevant international
and regional instruments on general human rights, international
humanitarian law, refugee law and child-specific hard and soft law
instruments, which should be taken into account. The General Comment No.
6 by the Committee on the Rights of the Child and the UNHCR 2008
Guidelines are also valuable interpretative sources. However, your
rapporteur is of the opinion that European states need to develop
their own common guidelines on the best-interests assessment, which
would define clearly the procedures and responsibilities and include
all unaccompanied children, not only those who have applied for
asylum. These guidelines should also include mechanisms to ensure
that the child’s views on his or her situation and future are properly
heard.
111. A best-interests assessment requires a clear and comprehensive
understanding of the child’s background, for which it is essential
to discover as much as possible about the child’s needs and protection risks,
affective ties, capabilities, interests, and also the capacity of
the adults willing to care for the child. The process needs to be
child-centred, gender-sensitive, guarantee the child’s participation,
and have a forward-looking approach. In order to facilitate credible
information collection on the circumstances of children and the situation
in their country of origin, a common tool should be developed.
4.2 Implementing durable solutions
112. It is not only important how the durable solutions
are identified but even more important how they are put into practice.The life projects for unaccompanied
children developed by the Council of Europe (Recommendation CM/Rec(2007)9)
offer a constructive way of engaging with the child. Life projects
are holistic, personalised and flexible tools which allow minors
to acquire and strengthen the skills necessary for becoming independent,
responsible and active in society, and to combine integration and
their personal development.
113. Drawn up and negotiated between the child and the authorities
in the host country, life projects take account of the child’s personal
profile, background and family situation, the causes of migration
and itinerary, and link these to the present, considering the aspirations
and perceptions of the minor, the legal situation of the child in
the host country and opportunities both in the host country and
the country of origin. Life projects seek to clarify and enhance
the child’s future prospects by ensuring that best interests are
respected, rights are upheld and that the child is supported to
develop the skills necessary to become a full and active participant in
society.
Note Offering specialised training and qualification,
they help prevent homelessness and marginalisation after reaching
adulthood.
114. Life projects may be followed in the host country or – subject
to the child’s best interests, safety and human rights being respected,
including the principle of non-refoulement for
those seeking asylum – in the country or origin, or in both countries.
Where return cannot be implemented, such projects help youngsters engage
in a meaningful self-development project rather than simply letting
the child age out. Exceptionally, where family members are living
lawfully in a third country, family reunification to that country
may be considered and a life project may continue there. Where member
states have established safe procedures for moving minors subject
to Dublin II regulations, life projects may follow them over national
borders within Europe, therefore including an element of multi-planning.
115. Needless to say, in order for the project to be successful,
commitment and responsibilities are required from both the relevant
authorities and the child. Built within this is also the arrangement
for monitoring progress and reviewing or revising the project, both
routinely at predetermined intervals and in response to significant changes
in the minor’s situation.
Note
116. The first pilot phase of implementing the life projects in
eight member states, which was completed by the European Committee
on Migration (CDMG) in 2010, allows your rapporteur to believe that
this is the way forward for ensuring durable solutions.
117. Your rapporteur does not underestimate the states’ concerns
as regards the additional costs of establishing proper systems for
identifying and implementing durable solutions, notably in the current
economic climate in Europe. She also hears the argument of better
protection and assistance possibly triggering increased immigration
flows. Your rapporteur is nevertheless convinced that investment
to respect the rights of children does not neglect the migration
dimension and that the benefits of helping children develop into positive
actors in whatever society they ultimately live, far overrides these
costs.
5 Rapporteur’s conclusions and recommendations
118. In the preceding chapters, your rapporteur has strived
to demonstrate the need for a proper and careful consideration of
the realities in respect of unaccompanied children in Europe, as
well as for a determined effort that European countries should jointly
make with a view to developing procedures that take into account
the vulnerabilities and rights of children and provide them with
durable solutions.
119. The greatest challenge for member states is to realise that
defending the best interest of the child requires a major shift
in the current policy approach: policies and practices should be
truly rights-based and these children should be treated first and
foremost as children, and only then as migrants. And that this applies to
all unaccompanied children, not only those who submit a request
for asylum or other forms of international protection.
120. The second major challenge is to improve procedures: member
states should concentrate on adopting sound and transparent procedures
to guarantee every child a fair, comprehensive and individualised assessment
that respects age and gender specificities, leading to a lasting
and beneficial solution. Instead of overly concentrating on the
return of these children to often war-torn and dysfunctional states,
which is in most cases anyway impracticable, before they reach the
age of majority, member states should engage in finding durable
solutions. Children should be given the right to challenge decisions
with the help of guardians and lawyers when they face detention,
deportation, or go through an asylum procedure.
121. Thirdly, there is a substantial need for harmonisation of
policies and practices across Europe. The European Union Action
Plan on Unaccompanied Children is far reaching in this respect and
establishes good principles, which should be followed by other Council
of Europe member states as well. But further challenges remain to
be tackled.
122. Your rapporteur believes that, with its expertise in the human
rights and child protection fields, the Council of Europe can make
a major impact in pushing for the paradigm shift as regards unaccompanied children
first treated as children first and foremost. Central to such a
shift would be recognition of the principles that these children
are entitled to special care and protection, that their best interests
should be a primary consideration in all decisions affecting the
child, and that the child’s views should be heard. In the past,
the Council of Europe has made important positive contributions
through its Life Projects initiative; hence your rapporteur remains
convinced that its voice will continue to improve respect for these
children’s rights.
