A growing body of EU law, policy and practical measures address the situation of separated and unaccompanied children who arrive in the EU. However, in the current sensitive political climate, there is a risk of attention and resources being diverted from building on progress

Jyothi Kanics

Rebecca O’Donnell

O’Donnell, Rebecca

Kanics, Jyothi

Oxford University Research Archive

73FMR 51January 2016 www.fmreview.org/destination-europeDestination: EuropeSeparated and unaccompanied children in the EURebecca O’Donnell and Jyothi KanicsA growing body of EU law, policy and practical measures address the situation of separated and unaccompanied children who arrive in the EU. However, in the current sensitive political climate, there is a risk of attention and resources being diverted from building on progress. An increasing number of children are migrating to Europe on their own in order to escape persecution, conflict, violence and poverty or seeking family reunification, educational or economic opportunities. Many are making very dangerous voyages, across land and sea, and once in Europe they may then move, or be moved by traffickers or smugglers, from one country to another. Many have claims for international protection,1 and many are at risk of discrimination and exploitation.According to Eurostat, the number of separated and unaccompanied children2 seeking asylum in the European Union (EU) has been on the increase since 2010. Between January and October 2015, the number of unaccompanied child asylum seekers in Sweden alone (23,349) exceeds the total EU figure in 2014. There are no complete statistics regarding unaccompanied children who do not apply for asylum but the figure is likely to be significant. In recent years, the EU established some specific obligations for Member States as regards unaccompanied children, including in the revision of the Common European Asylum System, the EU Directive on trafficking in human beings3 and the EU Return Directive.4 Although there are still advised to apply for international protection when the conflict broke out. As the work permit is automatically cancelled at the moment of lodging an asylum application, they could no longer stay employed. More importantly, the refusal to grant protection – which was the outcome of the vast majority of applications – meant that they had to leave Poland and, in many cases, received a temporary re-entry ban. Similarly, Ukrainian students from the Donbas region studying at Polish universities who hoped to be granted international protection and had therefore lodged an asylum application instead of prolonging their residence permit eventually lost their right to stay in the country. As a consequence, those two groups of migrants have been faced with the choice of either returning to Ukraine or staying in Poland on an irregular basis.The on-going conflict in the Eastern Ukraine raised high expectations among Ukrainians coming from the region of being granted international protection in Poland. But the Polish authorities’ application of IFA as an independent test puts Ukrainian asylum seekers in a very vulnerable position. The repeated application by the Polish authorities of this concept requires some liberalisation in the light of the absence of a real possibility for Ukrainian asylum seekers of such relocation inside Ukraine. Marta Szczepanik m.szczepanik@hfhr.org.pl  Researcher, Legal Assistance to Refugees and Migrants Programme, Helsinki Foundation for Human Rights, Warsaw www.hfhr.org.pl Ewelina Tylec ewelina.tylec@gmail.com  Human Rights Expert, Institute for Law and Society (INPRIS) www.inpris.pl 1. Eurostat http://tinyurl.com/Eurostat-asylum2014 2. Office for Foreigners http://udsc.gov.pl/statystyki  3. Article 18.1, Act of 2003 on Granting Protection to Aliens within the Territory of the Republic of Poland   www.refworld.org/docid/44a134a44.html   4. UNHCR (2003) Guidelines on International Protection: “Internal Flight or Relocation Alternative” within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees www.noas.no/wp-content/uploads/2002/09/UNHCR-Guidelines-Internal-Flight-or-Relocation-Alternative.doc 5. European Court of Human Rights, Salah Sheekh v. The Netherlands (Application no. 1948/04), 11.01.2007  www.refworld.org/docid/45cb3dfd2.html  74FMR 51January 2016www.fmreview.org/destination-europeDestination: Europedifferences in treatment of unaccompanied children depending on the different instruments which apply to them, the EU also made serious efforts to emphasise their common rights first and foremost as children through the implementation of an EU Action Plan on Unaccompanied Minors 2010-20145 which also sought to address some of the more difficult issues concerning all unaccompanied children, such as guardianship, age assessment, family tracing and durable solutions. Currently, the Member States are at an early stage of implementing and applying EU common obligations into national law and practice and there are both good practices and enduring challenges for Member States in identifying, receiving and caring for separated and unaccompanied children in Europe.6 In the current situation, it is vital to respect the new EU safeguards and involve child protection actors alongside immigration and law enforcement actors to identify risks to children in transit and to work to restore them to safe situations. Particular difficulties also arise for children who are not seeking asylum, or children who are approaching the age of eighteen, when migration and crime control concerns still appear to take precedence over child protection and humanitarian imperatives in some Member States. A fundamental challenge – common to all separated and unaccompanied children – is how to find a ‘durable solution’ for them, defined as a sustainable solution that ensures that the unaccompanied or separated child is able to develop into adulthood in an environment which will meet his or her needs and fulfil his or her rights as defined by the Convention on the Rights of the Child and will not put the child at risk of persecution or serious harm.7 It is an approach which may require Member States to contemplate and implement outcomes that may not be obvious in the context of migration control but which aim to fulfil the best interests of the child. For instance, a durable solution may include local integration on humanitarian grounds, even in the absence of a claim for international protection. Ultimately, it may require Member States to cooperate more fully with each other in order to identify the most appropriate care arrangement and location for the child to develop, for example by allowing transfers of children to another Member State through relocation schemes and more generous family reunification provisions. Moreover, putting in place proper measures to find durable solutions is the only appropriate route to achieving an objective which many Member States emphasise, that is, the return of unaccompanied children to their country of origin, when this is determined to be in their best interests. Best interests of the childSeveral Members States report having Best Interests Determination procedures in place to support their competent authority’s decision making on durable solutions for separated children. There are also ongoing EU-funded projects concerned with the better definition, identification and implementation of durable solutions in line with the child’s Unaccompanied minors from Afghanistan in Malmö, Sweden, November 2015, on their way to a temporary arrival hall (set up by the municipality to provide toilets, showers, wifi and electricity) before going to the immigration office where they can apply for asylum. UNHCR/Johan Bävman75FMR 51January 2016 www.fmreview.org/destination-europeDestination: EuropeRemoving ‘non-removables’Katharine T WeatherheadEU law and policy on non-removable irregular immigrants – such as unsuccessful asylum seekers who cannot be returned to their country of origin – have political and humanitarian consequences.In the European Union (EU), regular immigrants receive a residence permit and irregular immigrants receive a return order, an order to leave the country. Irregular immigrants “whose presence in the territory is known to the immigration authorities, but who, for a variety of reasons … are not removed”1 are termed non-removables, non-returnables or non-deportables. The barriers to their removal may be related to legal or humanitarian considerations, practical obstacles or policy choices.Legal barriers include the humanitarian situation in the state of origin, humanitarian considerations in cases of serious illness, obligations to protect family and private life, and obligations to protect the best interests of the child.Practical barriers include the lack of identification of the immigrant, the lack of travel documents, or refusal by the state of origin to readmit the individual.Policy-based barriers include safeguarding national interests, such as public best interests. Equally, the task of ensuring that decision making is well informed about the circumstances which affect children’s lives in their countries of origin is crucial. Finally, EU-funded projects have also addressed the return process, including monitoring and evaluating the outcomes for children and families after return. With the current large numbers of people and the difficult political climate, there is a risk of attention and resources being diverted from building on the progress that has been made in several respects to concentrating resources on emergency frontline measures and activities in third countries to deter migration and fight traffickers. However, the situation also urgently requires the EU and its Member States systematically to build on recent progress, not only in the asylum system and special measures for trafficked children but also in emerging procedures that consider the best interests of other migrant children. A comprehensive EU strategy on children migrating alone or accompanied may be the most effective route forward. Although policymakers may currently be cautious when adopting new policy frameworks, Member States will ultimately gain where the EU plays a prudent and proactive role in supporting them to protect all children from neglect, violence and exploitation within the region. Rebecca O’Donnell rebecca@childcircle.eu Co-founder, Child Circle www.childcircle.euJyothi Kanics jyothi.kanics@unilu.ch Research Fellow, National Center of Competence in Research – The Migration-Mobility Nexus http://nccr-onthemove.ch 1. See UNHCR (2009) Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees www.refworld.org/docid/4b2f4f6d2.html 2. For definitions and authoritative guidance, see Committee on the Rights of the Child (2005) General Comment No 6 on separated and unaccompanied children outside their country of origin  www.refworld.org/docid/42dd174b4.html 3. Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims  http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:101:0001:0011:EN:PDF 4. http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32008L0115&from=EN5. http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV:jl00376. See for example, European Migration Network (2015)  http://tinyurl.com/EMN-UnaccompaniedMinors  and EU Fundamental Rights Agency (2012)  http://tinyurl.com/FRA-separated-children 7. UNHCR and UNICEF (2014) Safe and Sound: what States can do to ensure respect for the best interests of unaccompanied and separated children in Europe  www.refworld.org/docid/5423da264.html 

English

Separated and unaccompanied children in the EU

ORA - Oxford University Research Archive

Directory of Open Access Journals

https://ora.ox.ac.uk/objects/uuid:c5dcb2c7-24d1-4ec1-bf0d-90b2c75a2871/files/sd504rm51d

Separated and unaccompanied children in the EU

Abstract

Similar works

Full text

Available Versions

Oxford University Research Archive

ORA - Oxford University Research Archive

Directory of Open Access Journals