Decisions concerning migrant children must always be based on their best interests

Human Rights Comment
headline Strasbourg 19/09/2013
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Decisions concerning migrant children must always be based on their best interests

Migrant children are particularly vulnerable – especially if they are unaccompanied, travelling without parents or relatives. Many have been traumatised and abused before arriving in Europe. They must be met with care and with respect for their rights. Yet, there are many accounts of harsh treatment.

State authorities must never forget that migrant children, including those who are asylum seekers, are first of all children. Children’s rights must always have priority and all actions should be based on the best interests of the child. In other words: immigration control should never override the UN Convention on the Rights of the Child.

Return houses: high risk projects

Several European governments are currently considering a solution to facilitate the return of unaccompanied children. Authorities in the Netherlands, Norway, Sweden and the United Kingdom, with Denmark as an observer, are trying to set up an institution in Afghanistan with the name “Welcoming Centre”. The coordinator, Sweden, is currently negotiating with authorities in Afghanistan for specific premises. The idea is that the children shall stay at the centre until they can be reunited with their families.

Local and international NGOs as well as bodies within the UN and the Council of Europe have expressed concern about the plan. An experts report concerning this issue underlines that family tracing in Afghanistan is all but impossible. The – so far limited – experience of sending children to return houses in war-torn countries has also shown that such procedures place children at a very high risk of trafficking for sexual and military purposes and in general at a risk of persecution in the return country. Most of the children have disappeared a few days after return.

The principle of non-refoulement proscribes the forced return to places where one’s life or freedom is threatened. It is a core principle that children should never be returned to places where their safety and well-being are at risk. Returning states are thus responsible for the further fate of the returned children.

Deportations are often traumatising

Forced return decisions concerning migrant children often fail to fully take into account the best interests of the child. Some deportation proceedings involve the use of force – even if force is used in respect of adult members of the family, it is traumatising for the children.

These decisions also frequently lead to a period of detention of minors, with or without family. Thousands of migrant children are detained every year in Europe, although they have not committed any crime. This practice continues to occur in many countries, even where it has been banned. France is an example of this, although cases of detention of migrant minors are no longer routine as used to be the case before a ban in 2012.

Forced returns can lead to the separation of families, for instance when parents have different nationalities and are sent back to different countries, or when one or both parents are expelled, but not the child.

Deportation decisions are sometimes taken even if an unaccompanied migrant child does not have adequate access to asylum procedures – especially in countries without an effective guardianship system, such as Greece. A guardian who can represent the interest of the child in the asylum procedure must always, and rapidly, be designated.

Sent to unknown countries

Several thousand persons have been forcibly returned to Kosovo* and other Balkan countries by western European states in recent years, mainly from Austria, Germany, Sweden and Switzerland. Some of the children involved were born in the host country and have no ties whatsoever to the place their parents fled from.

They end up in a country whose language they do not speak, where they face substandard living conditions and often have limited opportunities for schooling. Many of the returnees belong to minorities, in particular Roma. It is easy to imagine the tragedy for a child to be uprooted from country, school and friends.

Best interests of the child

Detention, separation, the use of the contested method of X-ray tests to determine age, hasty deportation decisions. Migrant children are indeed exposed to a heightened risk of violations of their human rights. Those who are separated from their families are obviously at particular risk.

It is time to review the policies towards migrant children. Children are first of all children and state authorities in Europe should always act with their best interests at heart. Forced returns to countries where the child’s best interests may not be served should end.

Nils Muižnieks

Select guidelines

Council of Europe Committee of Ministers, Twenty guidelines on forced return (2005)

Council of Europe Committee of Ministers, Recommendation CM/Rec(2007)9

on life projects for unaccompanied migrant minors

PACE, Resolution 1810 (2011), Unaccompanied children in Europe: issues of arrival, stay and return

PACE, Recommendation 1596 (2003), Situation of young migrants in Europe

Council of Europe Commissioner for Human Rights, Positions on the rights of migrant children in an irregular situation (2010)

UN CRC, General Comment No 6 (2005), Treatment of Unaccompanied and Separated Children outside their Country of Origin

UNHCR, Guidelines on determining the best interests of the child (2008)

* “All reference to Kosovo, whether to the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 (1999) and without prejudice to the status of Kosovo.”