B Explanatory
memorandum by Ms Reps, rapporteur
1 Introduction
1. For most adolescents, reaching their majority means
freedom and independence. But for many unaccompanied migrant children,
this stage in their lives is often a nightmare. For these children,
reaching their majority also means becoming an undocumented adult
migrant and losing a range of rights and protection available to
them as children. Unaccompanied children who were living in care
lose all their social assistance and face a lowering of their living
conditions. The vast majority are obliged to leave the country where
they have forged links and risk being placed in detention.
2. At present, there are no legal instruments designed to protect
them and accompany their transition to adulthood, which should be
a cause for celebration and an important stage in the life of all
children.
3. The first aim of this report is to take stock of the problems
encountered by unaccompanied migrant children during their transition
to adulthood and to ask States and the authorities concerned to
introduce measures to ensure that this transition is successful,
irrespective of whether they are refugees or asylum seekers, and
whether they migrated or reside independently, with family members
or in State care arrangements, while bearing in mind that the main
objective is to make them autonomous and independent.
4. In this context, attention should be drawn to Committee of
Ministers Recommendation CM/Rec(2007)9 on life projects for unaccompanied
migrant minors and the European Union’s decision to make unaccompanied minors
a priority policy issue within its 2010-2014 Stockholm Programme.
5. This report takes account of the conclusions of the consultative
meeting on “Challenges faced by young refugees and asylum seekers
in accessing their social rights and their integration, while in
transition to adulthood”, held by the Strasbourg European Youth
Centre on 17 and 18 November 2011 (DJS/CM Refugees (2011) 7) and
the discussions held at the Round Table with the participation of
young migrants, organised in co-operation with the European Youth
Centre in Budapest and the United Nations High Commissioner for Refugees
(UNHCR) on 14 and 15 January 2013.
2 The current
situation
6. Migrant children in an irregular situation, like
all other children, are protected by international law on the rights
of children and in particular by the United Nations Convention on
the Rights of the Child which applies equally to all children regardless
of their residence or migration status. While there is still a large
gap between the rights accorded to migrant children by the United
Nations Convention and their access to rights in law and practice
at national and local level, migrant children benefit from certain
additional protection measures due to their status as children,
especially if they are unaccompanied.
7. In most Council of Europe member States, unaccompanied children
have access to alternative care arrangements and support from the
State. Children residing with their families in an irregular situation
– children of undocumented migrants
Note and those that are undocumented
themselves – are afforded some additional protection in some member
States, for example regarding access to education, health care and
shelter, and in some cases protection from detention and deportation.
However, when migrant children become adults they enter a new stage
of their life and lose those additional rights and protection, often
from one day to another.
2.1 The legal consequences
8. In most Council of Europe member States, once unaccompanied
or undocumented migrant children reach their majority there are
several situations in which they may find themselves: having to
apply for international protection; being returned to their country
of origin; or remaining in an irregular situation. Therefore, these
children, in order not to be unfounded or credible, have to lodge
an application when they arrive.
9. In the United Kingdom, for example, where most unaccompanied
migrant children in an irregular situation are from Afghanistan,
Iraq, Iran, Eritrea, China or Taiwan, several possibilities are
offered. One possibility is the granting of a residence status to
allow them to stay longer and to have the possibility to seek asylum,
which entails the right to housing but not the right to work and
offers no assistance with education. These authorisations are granted
on a discretionary and case-by-case basis.
10. Another possibility is their return to their country of origin.
If this return is voluntary, the migrant children would receive
assistance and if not, he or she would be at risk of being placed
in detention. However, migrant children in an irregular situation
are not deported to their country of origin if they have no documents
that identify their country of origin or if the deportation would
violate the young migrants’ human rights.
11. In Hungary, projects have been set up to allow unaccompanied
migrant children to continue their studies, once they become adults.
Depending on their degree of interest, diligence and success, the
costs of these young migrants’ studies may be met by the authorities.
In this context, it should be pointed out that Hungary has altered
its system for the reception of unaccompanied children and childhood
protection bodies now have a more important role to play.
12. In Spain, most unaccompanied migrant children are from Algeria,
Morocco, Romania and Sub-Saharan Africa and are aged between 14
and 18. Their objective is to obtain official documents and to work.
13. Spain has set up so-called street education programmes in
Madrid and Barcelona to help children living in the streets to gain
access to the childhood protection system through non-school education.
Indeed most of them refuse to go to school and prefer vocational
training. It should be pointed out that children under official guardianship
can acquire Spanish nationality after two years and if they have
a work permit it does not expire when the legal guardianship comes
to an end.
14. In Spain, a programme has been set up to help young migrants
to become autonomous and when these young migrants reach their majority,
there is a special programme to help them become independent, including transition
housing, with programmes designed to help and take care of them
until they become completely independent.
15. In Ireland, the responsible authorities for separated children
continue to provide support for young migrants in care as they turn
18 and for a number of years. For example, the appointed social
worker attends all interviews and any appeal hearings and any court
appearances related to asylum or migration status in the country,
and supports their applications. A joint inter-departmental policy
has also been developed to place young migrants leaving care who
claim asylum in specific family centres within the adult accommodation system
that have aftercare support to meet their needs.
16. In France, young undocumented migrants who have successfully
complete their education and have their baccalauréat,
have the right to enrol at university at the same cost as French
students. They still face administrative and financial barriers,
and remain at risk of detention and deportation, but the right to
further education is protected in law and provides additional future
perspectives for young undocumented migrants.
2.2 The strategy envisaged
17. Bearing in mind the need to consider these young
migrants first and foremost as children, and bearing in mind the
judgment of the European Court of Human Rights in the
Rahimi
v. Greece case,
Note all
young migrants, as children, have the inalienable right to adequate
care and to a legal guardian if unaccompanied, and the State has
an obligation to provide children with the necessary assistance.
2.2.1 Acknowledging
the transitional phase
18. As I already mentioned above, reaching their majority
is an important stage in the life of young migrants, who suddenly
lose the social, economic and educational rights to which they were
entitled as children. Unaccompanied children lose, in particular,
the right to accommodation in a special home for young people or in
foster care arrangements, economic support and their official guardian.
Where undocumented families are in State-provided shelter due the
child’s need, as can be the case in Belgium for example, they are
also liable for eviction when the youngest child turns 18. Young
undocumented migrants are often placed in detention and deported
to their country of origin, which they may no longer remember and
with which they no longer have any contacts.
19. Another often neglected aspect is that of the lack of harmonisation
of administrative procedures. During my discussions with a number
of young migrants, they told me about the obstacle course they had
to work through, given the number of administrative inconsistencies.
20. In the eyes of the social welfare services, young migrants
who have become adults are no longer entitled to social benefits
whereas employment agencies or the State still consider them as
minors and do not pay any of the benefits usually paid to adults.
Young migrants therefore find themselves without any financial support, and
forced to work irregularly, often in poor conditions, in order to
survive. They also face challenges renting decent housing in the
private market, due to discrimination in law and practice, low and
unstable income, and the inability to conclude or enforce contractual
agreements. In both the labour and housing markets, the lack of
access to justice or redress for violations of rights make young
migrants vulnerable to living and working in exploitative conditions.
They are also unable to open bank accounts, further reducing their
economic empowerment and meaning they have to rely on informal financial
services.
21. In this context, many young migrants end up living on the
streets, where they are exposed to greater risks of being caught
up in the nets of drug trafficking, prostitution or human trafficking.
22. But before they can acknowledge this transition phase, the
authorities must be able to determine the age of young migrants.
In the light of the above, an erroneous age determination may play
an aggravating role. This will be even greater if the age of the
child concerned has been wrongly determined, finding him or her
older than he or she actually is.
2.2.2 Procedures for
age assessment or presumption of minority
23. During the discussions which were held but also during
my visit to the Fot (Hungary) detention centre, one of the most
frequently asked questions was how to assess age.
24. In this context, it should be pointed out that, in 2006, the
United Nations Committee on the Rights of the Child said that young
migrants’ age should be assessed not only by their physical appearance
but also by their psychological maturity.
25. At present, there are no legal instruments or any European
regulations for determining age and the principle of the benefit
of doubt must therefore be applied.
26. It is true that we now have state-of-the-art equipment and
that bone x-rays and other radiology or dental examinations make
it possible to assess the approximate biological age of the person
concerned. However, the reliability of these have been brought into
question and some techniques such as X-rays remain questionable
from the medical and ethical point of view and are contested by
international organisations.
27. In
Resolution 1810
(2011) “Unaccompanied children in Europe: issues of arrival,
stay and return”, the Parliamentary Assembly already underlined
and drew the relevant authorities’ attention to the lack of consensus
on procedures for assessing age and recommended, among other things,
that “age assessment should only be carried out if there are reasonable
doubts about a person being underage” and that the assessment “should
be based on the presumption of minority by an independent authority
… If doubts remain that the person may be underage, he or she should
be granted the benefit of the doubt”.
28. I would also like to underline the importance of and the need
to carry out such tests with the agreement of the child or of his
or her guardian and the involvement of experts from different disciplines.
3 A single objective:
autonomy
29. In the light of the above, it goes without saying
that the objective is to provide young migrants with the best possible
help in making the transition to adulthood so that they can become
fully responsible for themselves and achieve a good level of autonomy.
30. The aim of this report is not to create dependency through
ongoing help and assistance, but to ensure that they can act independently
as responsible adults.
31. In this context, attention should be drawn to the work already
carried out at the Council of Europe on life projects for unaccompanied
migrant minors (Recommendation CM/Rec(2007) 9).
3.1 The importance
of a life project
32. A life project is a plan that is drawn up by and
negotiated between a child and the authorities of the destination
country. It is a personal plan as it takes account of the child’s
past and his cultural identity and aims to give him or her prospects
for the future, while taking into account the best interests of
the child. Life projects offer an important basis for giving young
migrants the possibility to develop their autonomy and their sense
of responsibility so that they can become active members of society
as quickly as possible, irrespective of whether or not they remain
in the destination country.
33. It goes without saying that the persons closest to young migrants,
whether it be in the context of the life project or in their everyday
lives (at school, friends, etc.) play a very important role in helping
them to become independent when the time comes.
34. In this context, it was extremely interesting that for unaccompanied
young migrants, for economic reasons, their family in their country
of origin remained most important for young people as it provided emotional,
financial and educational support, and protection.
35. Family reunification must therefore continue to be an integral
part of the life project, either through voluntary return to their
country of origin or family reunification in the destination country.
36. During the discussions I had with these unaccompanied young
migrants, it was pointed out that social workers played an important,
if not the most important, role.
37. It is social workers who should guide, inform, keep an eye
on and advise young migrants. Unfortunately a large number of factors
(staff shortages, teaching crisis, lack of training) show that most
of the time these social workers do not have the necessary training.
This applies to virtually all Council of Europe member States.
38. Giving young people the possibility to attain a certain degree
of independence is not enough. In the light of expectations, it
would seem very necessary to establish a transition status for migrants
who have just reached their majority and to continue to grant them,
during the transition phase, the most elementary rights, which are
a condition sine qua non for
autonomy and successful integration.
3.2 Establishing a
transition category
39. From the different discussions it became clear that
young migrants are often helpless when faced with the lack of information
concerning their rights, the procedures to be followed, the documents
to be presented and the different forms to be completed.
40. This is all the more relevant when they enter the transition
phase to ensure their successful economic, social and cultural integration.
But in order to achieve this goal it is crucial that measures are
introduced to support and assist them.
41. In view of the above, if young migrants were considered as
a separate group, they could, when they reach their majority, benefit
from policies and practices that meet their specific needs.
4 Conclusions
and recommendations
- Policy makers should
take account of the specific situation of unaccompanied migrant
children who are reaching adulthood.
- A special transition status should be established, between
the ages of 18 and 25, to help young migrants until they can act
independently, by taking policy measures on:
- welfare assistance and education;
- access to information on the relevant administrative procedures;
- extensions of housing assistance until solutions are found;
- access to health care;
- measures to ensure specific training for social workers.
Furthermore, it will also be necessary to:
- raise the awareness of civil
society as an intermediary between the public authorities and young migrants;
- ask the authorities concerned to give young migrants the
benefit of the doubt when it comes to assessing their age; such
assessment should not be made without the informed consent of the
person concerned;
- introduce a school programme along the lines of the European
Union Leonardo da Vinci programme, enabling
young migrants to have a special document allowing them to travel.
