C Explanatory memorandum by Lord Don
Touhig, rapporteur for opinion
1. First of all, allow me to congratulate
Ms Serap Yaşar (Turkey, NR) on the timely report she has prepared for
the Committee on Migration, Refugees and Displaced Persons. While
a lot has been achieved in Europe in recent years to address the
situation of missing migrant and refugee children, the situation
remains very serious, and the Council of Europe member States need
to take note and to step up their action.
2. All Council of Europe member States have ratified the UN Convention
on the Rights of the Child (UNCRC) and have committed themselves
to “respect and ensure the rights set forth in the present Convention to
each child within their jurisdiction without discrimination of any
kind, irrespective of the child's or his or her parent's or legal
guardian's race, colour, sex, language, religion, political or other
opinion, national, ethnic or social origin, property, disability,
birth or other status”. Not only do children need special protection,
they are entitled to it, regardless of whether they are accompanied
or not, have legal documents or none at all, and are duly registered
or not (Amendment A). The
UNCRC also makes it an obligation for States to “trace the parents or
other members of the family of any refugee child in order to obtain
information necessary for reunification with his or her family”.
Such efforts should, of course, also be extended to migrant children
(Amendment B).
3. In order to address the issue of disappearances of refugee
and migrant children, in particular from host families, guardianship,
schools, accommodation facilities or other structures, it is important
to understand the reasons for such disappearances and to tackle
relevant issues according to their urgency and pertinence. It is important
to take note of the feedback from the people concerned. While these
people are in a position of extreme vulnerability such feedback
should be collected with the help of NGOs, associations and other
actors in direct contact with migrants and refugees, duly trained
on relevant approaches and safeguards (Amendment
C).
4. Disappearances of refugee and migrant children are a human
tragedy. Lack of action to address such disappearances is not compatible
with the Council of Europe member States’ commitment to uphold the
values of democracy and human rights. Furthermore, such lack of
action is also a threat to the well-being and security of our societies.
Inhumane conditions of reception result in broken lives and waste
of “social capital”. It is a lost opportunity to contribute positively
to the well-being of the countries of origin as well as that of
the countries of destination. Instead of nurturing a sense of belonging
and loyalty, it breeds frustration and resentment. Investing sufficient
resources in addressing this issue is not an act of charity. It
is common sense, and a necessity. If we are seriously committed
to addressing this issue, sufficient resources must be made available urgently
(Amendment D).
5. While biometric data can be useful for identifying undocumented
child migrants, its use also raises serious concerns. Children are
not always informed about the fingerprinting process and what it
is needed for and they might fear expulsion. Furthermore, some children
have damaged fingerprints, either through the work that they have
done, the perilous journey undertaken, or as a result of deliberate
self-harm, in order to avoid identification.
Note Coercive measures or threats have
been reported to be used during the fingerprinting process. The
EU Fundamental Rights Agency points out that “Biometrics must be
taken from children in a manner that respects human dignity and
is appropriate to their age, gender and maturity”. The Agency has
developed relevant safeguards for children when capturing their
biometric data, in addition to the Data Protection Convention (which
does provide for such safeguards)
Note (
Amendment
E and F).
6. All undocumented migrant children need to be given special,
individualised medical and psychological care as appropriate, and
not just those with special needs (Amendment
G). However, particular attention should be paid to children
with special needs, of course.
7. According to the UNHCR, “while some separated children appear
to be “accompanied” when they arrive in Europe, the accompanying
adults are not necessarily able or suitable to assume responsibility
for their care.“International protection”
is necessary because separated children have left their home community”.
Note It should be acknowledged that separated
children are often considered to be facing similar challenges to
those of unaccompanied child refugees and migrants (
Amendment H).
8. Article 22 of the UNCRC makes it an obligation for States
to “trace the parents or other members of the family of any refugee
child in order to obtain information necessary for reunification
with his or her family” (Amendment I).
9. The international legal standards refer to the appointment
of a guardian as early as possible in the procedures, ideally once
the child is identified as unaccompanied or separated (UNHCR advises
even before age-assessment is conducted), not only at reception
at the accommodation facilities or other structures. It is however
possible later for a child to have another guardian depending on
the location of the reception centre, due to geographical proximity
rationales. While it is important to ensure that migration status
procedures are undertaken promptly, such expediency should not amount
to a denial of safeguards (insufficient time to prepare the case,
to apply for legal aid, to lodge an appeal, etc.) (Amendment J).
10. While both girls and boys are exposed to risk of sexual violence,
girls are particularly vulnerable, not least because of the risk
of unwanted pregnancies and the physical and psychological damage
that this entails. Most of sexual violence remains unreported, out
of fear, shame, helplessness, concerns about discrimination and
stigma. Separate facilities for unaccompanied child migrants and
refugees are lacking. In many cases, premises are badly lit and
basic sanitation facilities are often remote or do not have locks.
Even bathing during day time can be dangerous.
Note More generally, gender sensitive
approaches are needed in relevant processes, including asylum procedures.
There should be more female interviewers and interpreters involved
in this context.
Note All these issues should be taken
into consideration when developing relevant policies and assigning accommodation
(
Amendment K).
