memorandum by Mr Agramunt, rapporteur
1. A child is first, foremost and only a child.
2. This is the starting point for any discussion about undocumented
migrant children. The status of the child is secondary and arguably
As indicated in the Convention on the Rights of the Child,
signed by all member states of the Council of Europe, a “child,
by reason of his physical and mental immaturity, needs special safeguards”Note
to be “protected against all forms of discrimination or punishment
on the basis of the status … of the child's parents, legal guardians,
or family members”.Note
As the Council of Europe’s Commissioner for Human Rights has
said, “Migrant children are first and foremost children and they
have the same rights as others to enjoy all the rights of the child.
The principle of the best interest of the child means that each
child must be seen as an individual and special consideration must
be given to his or her particular circumstances”.Note
5. In reality, undocumented migrant children do not get this
level of protection. They are triply vulnerable, as migrants, as
persons in an irregular situation and as children. The applicable
laws tend to tackle their situation from a migration and status
standpoint, and not from a child viewpoint.
6. Even when there are laws providing rights and protection to
undocumented migrant children, there are often huge barriers in
practice, preventing them from enjoying their rights and protection.
These barriers, include, inter alia,
administrative obstacles, linguistic hurdles, the complexity of
the administrative, judicial and other systems, discrimination,
lack of information, fear of being reported, etc. To these barriers
one can add that the enjoyment of most rights are interlinked with
other rights, so whilst one might provide for the right of education,
the absence of housing or health care will seriously prejudice the
enjoyment of that right.
In this report, the rapporteur will examine five key areas
in which access to rights of undocumented children remains highly
problematic. These include access to education, health care and
housing, and also issues relating to detention and labour exploitation.
There are other areas which are similarly problematic, but because
of their complexity, or because they are covered in other reports
by the Assembly or by other organisations or bodies, they will not
be covered here.Note
In this report, when we talk about undocumented migrant children
we mean children who, because of their status, are undocumented.Note
may be with their parents or they may be with relatives. They may
have been born in Europe or they may have been born outside of Europe.
The rapporteur has chosen not to deal with unaccompanied children
who once they come under the control of the authorities, are generally
dealt with differently by the authorities.Note
The rapporteur is at a loss to estimate the number of undocumented
migrant children in Europe. If there are around 4 million irregular
migrants in the European Union (with many millions more in the Russian Federation
and other non-EU member states), one can estimate that at least
10% of these are children.Note
Even with a conservative estimate
there are a significant number of these children in Europe.
10. The rapporteur, in preparing this report, organised a hearing
in Brussels on 15 March 2011, and gathered information from a wide
variety of sources. He is particularly grateful to participants
at that hearing and to the Platform for International Co-operation
on Undocumented Migrants (PICUM) for advice, material and comments
throughout the preparation of this report.
The right to education is less contentious than some
of the other rights examined in this report. Under the United Nations
Convention on the Rights of the Child, Article 28 requires that
“States Parties recognise the right of the child to education, and
with a view to achieving this right progressively and on the basis
of equal opportunity, they shall, in particular: (a) make primary
education compulsory and available free to all”.NoteNote
The European Convention on Human Rights (ETS No. 5, “the Convention”)
(Protocol 1, Article 2) requires that “no person shall be denied
the right to education”. The European Court of Human Rights, for example,
in the case of Timishev v. Russia
found a violation of the Convention in relation to the exclusion
from school of two children aged seven and nine as a result of their
Chechen father no longer having a migrant’s card.Note
The revised European Social Charter (ETS No. 163), under its
Article 17, provides a duty on states to provide children with “the
education and the training they need”. Notwithstanding the general
exclusion of irregular migrants from the scope of the Charter, the
European Committee on Social Rights has said that equal access to
education must be ensured for all children and that in this respect
particular attention should be paid to vulnerable groups.Note
date, the Committee has never expressly stated that undocumented
migrant children must have equal access to education. However, notwithstanding
the general exclusion of irregular migrants from the scope of the
Charter, the European Committee on Social Rights found that children
of irregular migrants must be granted certain rights such as rights
to shelter and free medical care.Note
this reasoning is extended, then the European Committee on Social
Rights may well find that the Revised Charter protects the right
to education of all children present within a jurisdiction.
14. Notwithstanding the clarity of international law and general
compliance of member states with this right, there are different
levels of formal protection provided and even greater levels of
discrepancies in terms of protection in practice.
In terms of formal protection, countries such as Belgium,
Italy and the Netherlands have a clear and explicit reference in
their legislation to the right of undocumented migrant children
to education. Some other countries, such as France, Poland, Spain
and the United Kingdom have an implicit right to education for these children.
A third group of countries, however, provides no legislative basis
for protection, and this includes countries such as Malta and Hungary,
where the right to education is only provided to persons with a
The rapporteur considers that it is essential that each country
has a law which ensures a legal right to education, in other words
that the “school gates are open”Note
undocumented children to enjoy the right to education.
2.1 Barriers to access
Having a law, however, is not enough and there are
a myriad of obstacles which in practice prevent the enjoyment of
this right. The rapporteur intends to highlight these in the following
18. Administrative hurdles for the child and for the school: A
common problem is the lack of any documentation which the child
can use to prove he or she is living in the area. The school itself,
even if it is ready to accept the child, may face problems in claiming
funding and may thus be discouraged from accepting the child.
Discrimination and discretion: Acceptance in the school is
often at the discretion of the head or persons responsible for admissions.
It can thus depend on goodwill. Some schools may not want to take
these children because they already have a large number of undocumented
pupils, or because they fear becoming “ghetto schools”, or because
they do not want to risk their standards falling,Note
or because they fear social tension,
or they do not want to invest in children who may be moving on rather
quickly. Discrimination is clearly a problem on all fronts, and
certain undocumented children face even greater problems, in particular
the Roma. The European Commission against Racism and Intolerance
(ECRI) has raised, on a number of occasions, problems in relation
to disproportionate representation in “special schools” and also
the concern that children of migrant origin risk being steered into
Fear of being apprehended: The fear of coming to the attention
of the authorities and being apprehended is a major concern for
most undocumented migrant families. Having to provide obligatory
information to the school in terms of contact information, including
an address, is one problem, as parents fear this will be sent on
to the police or other authorities. The fear that children or parents
themselves might be arrested outside of the school is also a factor
which deters parents from sending their children to school.Note
21. Practical problems: There may be a range of practical problems
which inhibit attendance. Parents (and therefore children) may have
to move around regularly. Even when schooling is free of charge,
money has to be found for travel, books, stationery, food, etc.
Some children may also need to support the family either by working
or by looking after younger siblings at home while parents work.
This can affect girls more than boys. A whole host of other factors
also come into play, including access to other rights, such as housing
(including privacy, space to be a child, space to do homework, etc.)
and health (which may affect the capacity of the child to study
and attend school).
Integration and motivation: The children face a range of integration
problems, starting with linguistic problems and lack of assistance
to catch up with the class standards. Furthermore, teachers are
all too often not trained or equipped to deal with children coming
from many different cultures and backgrounds. Furthermore, some
of the children will be traumatised by their past and ongoing experiences.
Too often the child is left to sink or swim. For those who are motivated,
obtaining a diploma may be problematic, due to their status. This
raises issues of discrimination and may end up being strongly demotivating
for the child.Note
Pre- and post-compulsory schooling: As these periods (pre-school
and kindergarten, and 16 to 18) are not compulsory in many countries,
it has been argued that there is no obligation on schools to take undocumented
migrant children during these ages. Furthermore, for older children
there may be barriers to internships which form part of this education.
The above matters all raise issues of discrimination,Note
in mind the public service nature of this education and its general
availability to all other children.Note
2.2 The way forward
24. Taking into account the different barriers that exist,
a range of recommendations can be made by the rapporteur to make
the enjoyment of this right more effective:
25. Clear and unequivocal legislation expressing the right to
education is a good starting point. This legislation has to be applied
and it has to be made known through policy documents, education
circulars or other methods to ensure implementation.
26. Registration and attendance at school must be dissociated
from any reporting based on status and must not be used for entrapment,
in or outside the school, or through use of information relating
to the child or his or her family.
27. Administrative obstacles, such as lack of a fixed address,
lack of documentation, etc. should not prejudice either the child
or the school, and this will require administrative guidelines and
flexibility. Furthermore, in this respect, schools should not be
punished, directly or indirectly, for taking undocumented migrant
children and they should be adequately funded for their additional
28. Steps have to be taken to encourage integration of undocumented
migrant children. Linguistic support for learning the host language
is an essential starting point and teachers require training to
handle these children from different cultural backgrounds, with
complex needs arising from their past and current situation.
29. The dangers of discrimination at the point of registration
and whilst at school need to be tackled. In this respect, solidarity
between schools is also necessary to avoid discrimination and also
to avoid the creation of “ghetto schools”.
30. Civil society plays a strong role at all stages, whether in
making irregular migrants aware of the right to education, as well
as the obligation of schooling, assisting with formalities, or even
assisting with some of the financial burdens. The role of civil
society is essential and requires support from the authorities,
but it should not absolve governments of their own responsibilities.
3 Health care
31. A child's right to health care should not be a contentious
issue. Broadly speaking, it is not, at least when dealing with emergency
health care, which is generally available, even for adults. Full
health care, however, is much more problematic, and it is provided
much less widely.
32. At the Eighth Conference of European Health Ministers of the
Council of Europe in Bratislava 22-23 November 2007, the Ministers,
in their Declaration, stated that “The member states will ensure
that irregular migrants are able to access health care service in
accordance with international treaties as may be in force at the
time and national laws and practice”. The Ministers also made it
clear that member states should work towards removing all practical
obstacles and barriers to the enjoyment of access to health care
including for those in an irregular situation as far as emergency
health care is concerned. Ministers also highlighted the need for
children to receive particular protection. This provides an unequivocal
message, at least concerning emergency health care, from the Committee
A recent report on Policies on Health Care for Undocumented
Migrants in the EU27: Towards a Comparative Framework (July 2010)
has broken down into three groups the classification of right to
health care in the EU27 for undocumented migrants. The first group
of countries are effectively classified as providing “no rights”.
In these countries health care is restricted to such an extent that
emergency health care is inaccessible. The second group of countries
provides minimum rights, namely emergency care (or care referred
to as immediate, urgent or similar) and the third group of countries
are classified as providing rights going beyond emergency care,
such as primary and secondary care.Note
At the hearing organised by the Committee on Migration, Refugees
and Population in Brussels a number of case studies were discussed
which graphically put in context the problems and consequences of
not guaranteeing the right to health care, beyond emergency health
care. From these case studies the rapporteur has put together the
following questions to put the issues in a practical day-to-day
context. Do we accept that a child with a raging temperature should
be refused medical treatment on the basis that the parents are in
an irregular situation and the health care needed is not yet life-threatening?
Does the child risk even greater sickness? If the sickness is not
treated, is there a risk of emergency treatment and hospitalisation,
and what is the cost (human and financial) of not having treated
the initial symptoms? Could the child be potentially contagious
and, if left untreated, threaten the health of the general public,
including other schoolchildren?Note
35. Under international law, the Convention on the Rights of the
Child is clear on health care. Article 24 provides that “States
Parties recognise the right of the child to the enjoyment of the
highest attainable standard of health and to facilities for the
treatment of illness and rehabilitation of health. States Parties
shall strive to ensure that no child is deprived of his or her right
to access to such health care services”. This applies to all children
whether documented or undocumented.
There are many other provisions under international law.Note
European Convention on Human Rights has linked denial of health
care to Article 3 of the Convention and the European Committee on
Social Rights has held in a collective complaint, International Federation of Human Rights Leagues
health care for undocumented migrant children “cannot be restricted
to medical situations which involve a threat to life”.
While the position in national law should mirror international
law, providing for a clear right to health care going beyond emergency
health care, it does not. In PICUM’s report on Undocumented Children
different types of protection at national level were highlighted
with some countries giving the right to all children (Spain was
particularly commended on this), others distinguishing between separated
and undocumented children (Belgium, France and Italy), a further
group providing health care at the discretion of the local doctor
(Netherlands and the United Kingdom) and a final group of countries
providing no specific legislative support (Hungary, Malta and Poland).
38. What is clear is that there is great inconsistency across
Europe. There are countries with and without specific legislative
provisions, there are different levels of health care provided,
high levels of discretion applied, as well as clear discrimination,
not only between nationals, regular migrants and irregular migrants,
but also between unaccompanied minors and accompanied undocumented
It is, however, not just a question of legal access but also
practical access to health care as the following statistics show.
In a recent publication by Médecins du Monde European Observatory,
entitled Access to healthcare for undocumented migrants in 11 European
it was found
that 70% of people interviewed could theoretically benefit from
access to a minimum form of health care, with variations ranging
from 3% in Greece to 98% in Belgium. However, a quarter of persons
concerned were unaware of this (with wide divergences between countries
– for example in the United Kingdom 52% of persons affected were
unaware of this while the figure for Spain was 6%). The study concluded
that, in practice, 80% of people interviewed did not actually have
real access to health coverage the last time they were ill.Note
Other statistics indicate the extent of the problem revealed
in this study. A total of 29% of persons concerned gave up seeking
health care (primarily medical consultations and vaccinations) for
their children at some point in the year monitored.Note
statistics indicate the dangers in terms of communicable diseases. For
example, only a third of persons concerned knew they were entitled
to HIV tests free of charge, demonstrating a clear need for more
3.1 Barriers to accessing
In the study by Médecins du Monde European Observatory,Note
top five barriers in accessing health care are, in descending order:
administrative problems, expense of medical consultations, complexity
of the system, expense of the treatment and the fear of being reported.
Other barriers also exist in terms of discretionary powers of health
workers, discrimination, language barriers, etc. The most important
barriers examined are as follows:
42. Administrative problems and complexity of the system: To give
a country example, in France, to obtain state medical assistance,
the authorities require an address, photos of the children and proof
of residence for longer than three months. This needs renewing every
year. This serves to dissuade many irregular migrants and their
Another example is Belgium, where undocumented migrant children
are in theory entitled to medical aid (since 1996) on the same basis
as nationals. Basically, the procedure requires a doctor to fill
out a form, the patient to visit municipal social services to obtain
access to the health care, social services then have to check to
make sure nobody else is responsible, a health card or specific
authorisation is then issued for a maximum of three months. This
has to be repeated every three months.Note
the rapporteur heard at the hearing in Brussels, medical professionals
do not know the legislation, or the procedures. Even the name of
the legislation is confusing, namely “Aide médicale urgente”, bearing
in mind it covers both curative and preventative aid. Procedures
are different depending on whether the patient is with or without
papers or is a failed asylum seeker. Furthermore, during their stay
in Belgium, persons might have successive administrative statuses (undocumented,
with a temporary status, failed asylum seekers, etc. Each time a
patient changes category or place of residence, a new procedure
is required. The rapporteur heard that many health care professionals simply
do not want to get embroiled in the administrative complexities
because of the weight of the procedures and their complexity.Note
44. It can be said that often the procedures are so long that
they are useless because examination, treatment and medication is
generally required immediately.
45. Medical consultations and treatment are too expensive: This
is a very real barrier for many. The rapporteur was provided with
real-life examples of how difficult the situation can be for families
to raise sufficient funds to pay for consultations and then purchase
the necessary medicines for treatment. One example highlighted the
false economy of not providing free medical aid until the situation
became life- threatening. A listless child with a very high temperature
was taken to a doctor. The family, having exhausted its money on
seeing the doctor, had no money to purchase the necessary medicines.
The child steadily got worse until the parents had to take the child
to a hospital emergency department, which had no option but to admit
the child to hospital. Even if the hospital could have prescribed
the necessary home treatment, the parents of the child could not
have afforded it. Therefore there was no other option than for the
public purse to carry the vast comparative cost of hospitalisation
of the child for several days.
46. Because of the costs involved and the difficulties involved
in accessing treatment it is not unheard of that where health care
is made available, it is accepted regardless of whether or not it
is needed. As the rapporteur heard at the hearing in Brussels, one
of the few things generally available are vaccinations. As a result,
there are examples of children being inoculated over and over again
as the families move around Europe. They have no medical card registering
this, and as it is the only thing offered free they take it, to
be on the safe side. This is far from being on the safe side and
represents a poor use of resources.
47. A practical solution would be to introduce a Europe-wide travelling
medical card which would help irregular migrants and their children
keep track of vaccinations and treatment, and also help medical
workers along the chain.
48. Fear of being reported or arrested: While this fear may be
more imagined than real, it remains an important psychological hurdle
to be overcome by families of irregular migrants. There does not
appear to be evidence of arrests taking place in hospitals, surgeries
or following doctors' consultations. Notwithstanding this, it should
be made clear to the authorities and to irregular migrants that
there should be no reporting requirements by medical professionals
to the authorities of persons in an irregular situation.
Discretion and discrimination: Discretion and goodwill appear
to play an important role in a number of countries. This discretion
can however be problematic as it can also lead to discrimination.
Health care should not be left to discretion, in the same way as
it should not be left to civil society to fill the gaps left by
the lack of health care. To provide a country example, in the United
Kingdom, undocumented migrant children are, in principle, only entitled
to health care which is considered “urgent” and “immediately necessary”,
with parents being liable for charges for secondary care. Notwithstanding
this, local doctors (general practitioners) have a discretionary
power to register persons with the National Health Service system
even if they are from excluded groups.Note
50. The rapporteur notes the challenge of providing health services
in an increasingly multicultural society and this brings a whole
range of challenges to member states when organising these services.
The situation of undocumented migrant children is just one aspect
that needs to be taken into account, and member states are encouraged
to take this group into account. This should particularly be the
case when implementing the Committee of Ministers Recommendation
Rec(2006)18 on health services in a multicultural society. The rapporteur
notes that the Committee of Ministers is in the process of adopting
a Recommendation on mobility, migration and access to health care,
and looks forward to the text being finalised.
3.2 The way forward
51. The way forward becomes less complicated if we take
into account that a sick child is simply a sick child in need of
medical care and attention regardless of status.
52. As a starting point there needs to be a clear legislative
basis dissociating access to health care for undocumented migrant
children from status. Health care should be provided which goes
beyond emergency health care, covering all health care on a non-discriminatory
basis with other children.
53. In the context of national non-discrimination legislation
and its implementation, discrimination in access to health care
for undocumented migrant children should be monitored as a priority.
54. It is also essential that administrative requirements are
kept to a minimum and that the system remains as simple as possible,
both for the benefit of patients and for health workers.
55. The information flow to health workers needs to be improved,
so that they are aware of their legal obligations and how to deal
with the relevant formalities. The information flow also needs to
be improved for patients and their families to ensure that they
are aware of their rights.
56. The medical costs of consultations and treatment should not
be dissuasive, so as to allow those in need of medical assistance
to obtain this without recourse to emergency measures which may
end being more costly for the authorities.
57. There should be no reporting instructions to the authorities
for health workers, and this should be made known to health workers
and their patients.
58. In view of the language barriers that exist, adequate interpretation
has to be made available, whether this is through telephone interpretation
services or other means.
59. Each child should have an individual medical dossier which
travels with his or her family.
60. The World Health Organisation should be encouraged to examine
the issue of health care of undocumented migrant children with a
view to monitoring the situation and making further recommendations.
61. Finally, member states should take into account, when implementing
Committee of Ministers Recommendation Rec(2006)18 on health services
in a multicultural society, the specific needs of undocumented migrant
62. Access to housing is one of the most difficult issues
to grapple with. Irregular migrants are at the very edge of society
without, for the most part, any safety net to protect families and
children from falling into total poverty. They rarely have access
to public housing and are rejected by a large part of the private
housing market. This may be due to racism and discrimination; it
may also be due to their status or simply because of their financial
instability. They are open to exploitation and often find accommodation
only in the unregulated housing market and end up living in dirty,
dangerous, unsanitary and overcrowded conditions.
In the survey by Médecins du Monde European Observatory,Note
46% of the persons interviewed had access to stable accommodation.
Of those in insecure accommodation, 78% lived with family or friends
and 14% of persons stayed in a property without a lease or legal
contract. 86% of persons lived in overcrowded accommodation with
64. One should not underestimate the effect that this overcrowding
can have on children in terms of their lack of privacy and the lack
of their own space, separated from adults, for example with nowhere
to play alone or with other children and nowhere to do homework
or other activities.
International conventions cover the right to an adequate standard
of living, which includes housing.Note
27.3 of the Convention on the Rights of the Child states that: “States
Parties, in accordance with national conditions and within their
means, shall take appropriate measures to assist parents and others
responsible for the child to implement this right and shall in case
of need provide material assistance and support programs, particularly
with regard to nutrition, clothing and housing.”
At a European level, under the European Convention on Human
Rights, Article 8 (right to private and family life and home) and
Article 3 (freedom from degrading treatment) are the most relevant
Under the European Social Charter the European Committee on
Social Rights has taken an important stand on the issue. In Defence for Children International (DCI) v.
(Complaint No. 47/2008) the Committee
concluded that States Parties are required, under Article 17 and
Article 31, paragraph 2, of the revised Charter, to provide adequate
shelter to children unlawfully present on their territory for as
long as they are in their jurisdiction. Any other solution would
run counter to the respect for their human dignity and would not
take due account of the particularly vulnerable situation of children.
Furthermore, it stated that alternatives to detention should be
sought in order to respect the best interests of the child. In an
interesting development in the Netherlands, later proposals by the
authorities to separate the children and to place them in a welfare institution
as an alternative, was considered by the courts to be a violation
of the right to family life.Note
4.1 Problems in practice
The situation at international level is not mirrored
at national level. As found in the study by PICUM, already referred
to, there would appear to be no national legislation protecting
or guaranteeing the right to decent housing for children of irregular
69. In view of the lack of legislation, there is little in the
way of practice let alone good practice in providing accommodation
to children of irregular migrants. The exception is in relation
to unaccompanied children where there is in general a duty of the
authorities to house these children. This does, however, open up
the issue of discrimination vis-à-vis undocumented migrant children
and other children.
70. A separate problem exists, which is that if a family of irregular
migrants contacts the authorities for housing and accommodation,
the authorities are most likely to reject the family but may then
be under a duty to take the children into care if the family cannot
provide a home. This option of taking the children into care throws
up a range of problems, primarily in relation to the right to family
71. Mothers with young children may be able to obtain accommodation
for a short period of time, but this accommodation is often inappropriate
and in lodgings where there are also men. A particularly vulnerable group
of children are unaccompanied children not in care. They may not
be in care because the authorities are not aware of their existence
or because they have left or fled care for one reason or another.
They face all manner of problems and exploitation on the streets,
including onward trafficking.
72. Rather than getting better, the situation appears to be getting
worse. There has been a hardening of attitudes to irregular migrants
in general and a corresponding reduction in this type of assistance
to families. In part this is political, but it is also economic,
in view of the crisis. The net result is that the burden falls on
civil society which has to play an ever increasing role in terms
of providing shelter, advice and material and legal assistance.
With increasing steps to criminalise irregular migrants, these organisations
have to be careful not to fall foul of this and other legislation.
4.2 The way forward
73. Legislation is needed to regulate the situation of
undocumented migrant children in the area of housing and accommodation,
in particular in the light of the decision of the European Committee
on Social Rights in the collective complaint against the Netherlands.
74. Local authorities cannot ignore the plight of these children,
but the solution cannot simply be to take them into care. Such a
step would raise concerns, in particular the right to family life
under the European Convention on Human Rights.
75. The authorities need to pay particular attention to the vulnerability
of single parents with young children, as well as unaccompanied
children who are not in care.
76. Civil society cannot be expected to provide all the solutions,
but they can provide some with support from the authorities. Without
relieving the authorities of their own responsibilities, much greater
support has to be given to these civil society organisations to
allow them to provide assistance for persons who would otherwise be
As has been stated by the Special Rapporteur on the
Human Rights of Migrants, detention is never in the best interests
of the child.Note
78. Under international law, and notably the Convention on the
Rights of the Child, the best interests of the child should take
precedence. It will rarely be in the best interests of the child
to be in detention where the conditions often do not meet basic
standards, where children cannot receive education, where activities
are severely limited and where children may suffer all forms of
79. Under international law, there are three basic safeguards
in relation to detention of irregular migrant children, in addition
to the best interest safeguard. In the first place, deprivation
of liberty should be a measure of last resort (in other words, all
other alternatives must have been exhausted); in the second place,
detention should be for the shortest possible time (in practice
this should not be for more than a few days); and thirdly, the child
should only be detained if the conditions of detention are appropriate
(in terms of safe accommodation, hygiene, access to activities,
education, etc.). If these conditions are not met, then detention, which
should always be subject to judicial review, should not be authorised.
80. Reference in this respect can be made to Article 37 of the
Convention on the Rights of the Child (requiring that detention
be a “measure of last resort” and “for the shortest appropriate
period of time”. In a European context reference can be made to
the Committee of Ministers’ Twenty Guidelines on Forced Return, which
refers not only to detention being a measure of last resort and
having to be for the shortest appropriate time, but also provides
an extensive list of requirements concerning detention conditions.
A large number of other references can be given both at the
level of the Council of Europe and that of the European Union.Note
At a national level, according to the European Union’s Fundamental
Rights Agency, the majority of EU countries permit the detention
of children of irregular migrants on immigration grounds with only
three countries having provisions prohibiting detention of these
children (Hungary, Ireland and Italy), although a number of other
countries have policies not to detain these children, such as Belgium,
Cyprus and Malta (although in the case of Malta, children can be
kept in detention while age verification takes place, and in Cyprus
there are examples of detention while preparing their removal).Note
There appears to be a growing recognition among states that
one should not detain undocumented migrant children, whether they
are accompanied or not.Note
Both the Netherlands
and the United Kingdom have recently changed their policies on this
issue and refrain, wherever possible, from detaining children. The Netherlands,
for example, had 300 minors in detention in 2009. On 10 March 2011
the Minister for Migration announced a new policy dispensing with
detention except where age was in doubt, where children had previously
disappeared, committed a crime or were due to be deported within
5.1 Problems in practice
84. A number of problems arise in practice in applying
the international standards at national level.
85. When should one apply the principle of best interest of the
child when examining the question: “To detain or not to detain?”
86. At what stage should one apply the principle of best interest
of the child? The problem with accompanied undocumented migrant
children is that all too often the assessment concerning the best
interest of the child is made after a decision has been taken to
detain the parents. This then leads to a decision which does not
allow for the best interest of the child. The decision then boils
down to the lesser of two evils: whether to place the child in detention
or to separate the child from his or her parents.
87. The rapporteur is of the view that before any decision is
taken vis-à-vis a parent and any other member of the family, there
should be a review of the situation, taking into account the best
interests of the child.
88. Decisions to separate a child from a parent: in the context
of detention this poses a particular problem in view of the clash
of rights, namely the right not to be detained and the right to
family life and not be separated (see, for example, the right to
family life under Article 8 of the European Convention on Human
Rights, and the right not to be separated from a parent specifically
guaranteed under Article 9.1 of the Convention on the Rights of
In the Fundamental Rights Agency’s study on detention,Note
highlights the different state practices, it is noted that Sweden
is the only country that explicitly prohibits the separation of
a parent from a child. Some countries, such as France, Latvia and
Portugal, prefer to keep the child with the parents, while countries
that refrain from detaining children will, in general, separate
the children, although they will often foresee exceptions to this.
Another option that is carried out in some countries, which is a
form of hedging of bets, is to detain the father but allow the rest
of the family to be released from detention or placed elsewhere.
90. Both detention and separation of undocumented migrant children
should be avoided. It is thus imperative to examine all alternatives
to detention before a decision is made to detain any member of the
family. Any decision will need to take into account the best interest
and the wishes of the child.
91. Conditions of detention: there is plenty of evidence to show
that in reality the conditions of detention in many member states
should not allow for detention of irregular migrant children. Reference
in this respect can be made to the work and monitoring of the CPT,
the Commissioner for Human Rights and also the Parliamentary Assembly
92. The rapporteur highlights the requirement in the Committee
of Ministers’ Twenty Guidelines on Forced Return, Guideline 11,
which states not just that detention should be a last resort and
for the shortest period, but that children need to have separate
accommodation and privacy. They have a right to education (depending
on the length of their stay) and leisure. Furthermore, the personnel
and facilities need to be adapted to the age of the child.
The European Court of Human Rights has also developed case
law on this. In one case Muskhadzhiyeva
and others v. BelgiumNote
Court found that the detention of Chechen children pending their removal
was unlawful and their conditions of detention unacceptable. In
another case Mubilanzila Mayeka and Kaniki
Mitunga v. Belgium
found violations of Articles 3 and 8 of the Convention concerning
the detention and deportation of the child. The child was held in
facilities for adults for nearly two months with no counselling
or educational assistance and was not quickly reunited with her
The age of the child:
particular problem arises in assessing the age of the child with
a view to deciding whether or not detention is appropriate. There
can be large margins of error (for example up to two years for wrist
x-rays) and the benefit of the doubt should always be given to the
child. The Assembly has already given guidance on this issue in Resolution 1810 (2011)
on Unaccompanied children in Europe: issues of arrival,
stay and return, where it said, in paragraph 5.10, “Age assessment
should only be carried out if there are reasonable doubts about
a person being underage. The assessment should be based on the presumption
of minority, involve a multidisciplinary evaluation by an independent
authority over a period of time and not be based exclusively on
medical assessment. Examinations should only be carried out with
the consent of the child and his or her guardian. They should not
be intrusive and should comply with medical ethical standards. The
margin of error of medical and other examinations should be clearly
indicated and taken into account. If doubts remain that the person
may be underage, he or she should be granted the benefit of the
doubt. Assessment decisions should be subject to administrative
or judicial appeal.”Note
5.2 The way forward
95. The Assembly has already indicated in a number of
recent texts its concerns about detention of undocumented migrant
children, including unaccompanied minor children.
96. The rapporteur, however, would like to highlight the following
principles in relation to the detention of undocumented migrant
children, which should be reflected both in law and in practice:
97. The starting point should be the best interest of the child
and alternatives to detention should be sought.
98. Where, exceptionally, detention is necessary, it should be
provided for by law, with all relevant protection and effective
judicial review remedies.
99. If a child is placed in detention, it must not be for too
long and the facilities must be suitable in terms of the age of
the child, and also in terms of the activities and educational support
100. If detention does take place, it must be in separate facilities
to those of adults and the child should not be separated from a
parent, except in exceptional circumstances.
101. It should also be recalled that no child should be deprived
of his or her liberty solely because of his or her migration status,
and never as a punitive measure.
102. Where a doubt exists as to the age of the child, the benefit
of the doubt should be given to the child.
6 Labour exploitation
The rapporteur is aware that the Assembly will be
preparing a report on trafficking of migrant workers for forced
labour: time for a closer look (see Doc. 12411)
, in which the issue will be expanded upon. Notwithstanding
this, the rapporteur would like to highlight a number of concerns
which apply to undocumented migrant children. In view of the precariousness
of these children and their families, there is a risk that a number of
these children end up begging, pickpocketing and shoplifting, being
used to work in hazardous conditions, carrying out illegal work,
or being sexually exploited. While this is a particular problem
for unaccompanied children, who are often trafficked particularly
for these and sexual purposes, the problem is not limited to them.
104. These children should be at school and should be protected.
They should not be on the streets, in sweatshops or other workplaces.
The rapporteur notes that there is a strong interlinkage between
the different rights examined in this report and labour exploitation;
there is thus a need to have a holistic approach to the issue of
rights of irregular migrant children.
To give some examples of labour exploitation in Europe, the
rapporteur refers to a report by UNICEF UK which highlights the
problems of economic and sexual exploitation of child beggars from
Albania in Greece, children from Romania brought into France, Italy
and elsewhere to take part in criminal activities, eastern European
children forced into prostitution and West African children brought
into the United Kingdom and France to work as live-in domestic workers.Note
Begging and stealing by street gangs is becoming an increasing
problem across Europe, with children being used because of their
speed and agility. It is therefore difficult to arrest and hold
them, even when they are placed in care. According to certain reports,
the profits involved can be substantial, making it even more attractive
for criminal gangs and networks.Note
The rapporteur understands that some countries have sought
to tackle the problem by proposing begging bans as a means of dealing
with the problem. This has, however, led to criminalisation both
of certain groups and of children, and human rights concerns about
this criminalisation have been raised by a number of human rights
108. The issue is one that needs looking into further by the Assembly.
This could be done in the context of the forthcoming report on trafficking
of migrant workers for forced labour, or in the context of a more
general report on the issue of labour exploitation of children in
6.1 The way forward
109. There is a need for more information, including on
the different forms of exploitation, their prevalence, the persons
primarily at risk and the persons or groups carrying out the exploitation.
110. The particular issues of sexual exploitation, the use of children
for begging and carrying out criminal acts, domestic workers, sweatshops
and other forms of labour exploitation all require further examination.
111. The issue of begging is also a matter that requires further
analysis, both from the angle of exploitation and trafficking, but
also from the angle of discrimination and criminalisation.
112. “A child is a child is a child.” This is perhaps
the most telling statement to make before looking further at the
issue of undocumented migrant children. A child is not responsible
for his or her migration status, a child has all the rights recognised
by the United Nations Convention on the Rights of the Child, which
includes as a starting point “the best interest of the child”. Furthermore
a child should not be discriminated against because of his or her
113. With this as the starting point, member states need to re-examine
their legislation and practice to ensure that these children enjoy
the rights and protection afforded to them under international law.
The issue should not be treated in a migration context but from
the angle of the child. Migration concerns remain relevant but they
should be secondary.
114. The rapporteur recognises and welcomes that in many instances,
the laws of member states recognise the need to protect the rights
of these children, particularly in relation to education and emergency
health care. However legislative protection across Europe is far
from harmonised, creating a regrettable difference in treatment
from one country to another. When it comes to application of the
law and the rights in practice the situation is more alarming.
115. The Assembly, and the Council of Europe as a whole, has an
important role to play in safeguarding this vulnerable group of
children. The Council of Europe has the human rights and legal instruments
to strengthen the rights of these children, and it has, through
its campaigns and co-operation activities, the tools to ensure, in
practice, that this is done. The rapporteur believes the Council
of Europe and its Assembly can and should rise to this challenge.