Unaccompanied Children in European Migration and Asylum Practices

In Whose Best Interests?

Mateja Sedmak, Birgit Sauer, Barbara Gornik, Mateja Sedmak, Birgit Sauer, Barbara Gornik

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317275367
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Unaccompanied minor migrants are underage migrants, who for various reasons leave their country and are separated from their parents or legal/customary guardians. Some of them live entirely by themselves, while others join their relatives or other adults in a foreign country. The concept of the best interests of a child is widely applied in international, national legal documents and several guidelines and often pertains to unaccompanied minor migrants given that they are separated from parents, who are not able to exercise their basic parental responsibilities. This book takes an in-depth look at the issues surrounding the best interests of the child in relation to unaccompanied minor migrants drawing on social, legal and political sciences in order to understand children's rights not only as a matter of positive law but mainly as a social practice depending on personal biographies, community histories and social relations of power.

The book tackles the interpretation of the rights of the child and the best interests principle in the case of unaccompanied minor migrants in Europe at political, legal and practical levels. In its first part the book considers theoretical aspects of children's rights and the best interests of the child in relation to unaccompanied minor migrants. Adopting a critical approach to the implementation of the Convention of Rights of a Child authors nevertheless confirm its relevance for protecting minor migrants' rights in practice. Authors deconstruct power relations residing within the discourses of children's rights and best interests, demonstrating that these rights are constructed and decided upon by those in power who make decisions on behalf of those who do not possess authority. Authors further on explore normative and methodological aspects of Article 3 of the Convention on the Rights of a Child and its relevance for asylum and migration legislation.

The second part of the book goes on to examine the actual legal framework related to unaccompanied minor migrants and implementation of children's' rights and their best interests in the reception, protection, asylum and return procedures. The case studies are based on from the empirical research, on interviews with key experts and unaccompanied minor migrants in Austria, France, Slovenia and United Kingdom. Examining age assessment procedures, unaccompanied minors' survivals strategies and their everyday life in reception centres the contributors point to the discrepancy between the states' obligations to take the best interest of the child into account when dealing with unaccompanied minor migrants, and the lack of formal procedures of best interest determination in practice. The chapters expose weaknesses and failures of institutionalized systems in selected European countries in dealing with unaccompanied children and young people on the move.

1 Introduction

Unaccompanied minor migrants in Europe: between compassion and repression

Barbara Gornik, Mateja Sedmak and Birgit Sauer

Introduction

This book is the result of research started three years ago, at that time not knowing that the issue of the migration of refugees to Europe would escalate to such an extent as it did in 2015, when more than one million refugees arrived in the European Union (EU). Among these refugees, nearly 90,000 asylum seekers applying for international protection were considered unaccompanied minors (Eurostat 2016). The situation has not changed much since then in that many refugees are still waiting to start a new life in a safer place than their countries of origin. This book comes just in time to address and remind readers about the obligations resulting from the peremptory norms of international law that EU member states are obliged to respect when dealing with refugees. The contributions in this volume give primary consideration to the rights and best interests of unaccompanied minor migrants and present their normative, methodological, procedural and practical aspects; the chapters closely examine the implementation of the rights of unaccompanied minor migrants in relation to particular asylum and migration procedures after arriving in Europe and analyse their best interests according to different views and interpretations.

The best interests principle is one of the most vital concepts and criteria for decisions made regarding unaccompanied minor migrants and it is referenced in practically all asylum and migration policies, strategies and recommendations produced by the European Commission, European Council and European Parliament. European and consequently also national legislation recognises the importance of the Convention on the Rights of the Child (CRC) and formally places the standards of the Convention at the heart of all actions concerning unaccompanied minors. Specific reception measures, higher standards of protection and childcare guarantees are to be applied from the moment a minor enters EU territory until a durable solution is found.

All these key standards of international law which function well on paper have been put under scrutiny in theory and practice by the contributors of this volume. The objective of this book is to tackle the interpretation of the rights of the child and the best interests principle in the case of unaccompanied minor migrants in Europe at political, legal and practical levels. The contributions point to the discrepancy between states’ obligations to take the best interests of the child into account when dealing with unaccompanied minor migrants and the lack of a formal process of best interests determination in practice. The contributions herein examine the conceptual aspects of the best interests of the child including an analysis of the legal, political, NGOs’ and unaccompanied minors’ points of view, demonstrating that these interpretations can differ, contradict or overlap. The authors deconstruct the power relations residing within the discourses of children’s rights and best interests, indicating that these rights are constructed and decided upon by those in power who make decisions on behalf of those who do not possess authority (e.g. minors). Moreover, focusing on procedures related to reception, asylum procedures, protection measures and the return of unaccompanied minor migrants, the contributions highlight the practical dimensions of the application of the best interests principle or its lack.

The case studies presented in the second part of the book build upon biographical stories, narratives and auto-perceptions of unaccompanied minors, and thus address the experiences of the children themselves. To analyse the views and experiences of unaccompanied minors themselves is of particular importance as there is an omnipresent lack of research on unaccompanied minors exploring their own perspectives (Wernesjö 2011). The empirical data used in the case studies presented here was mainly collected within the international project ‘In Whose Best Interest? Exploring Unaccompanied Minors’ Rights through the Lens of Migration and Asylum Processes’, carried out in Slovenia, Austria, the United Kingdom and France in 2014 and 2015. This insight into the national context reveals that the principle of the best interests of the child is often severely compromised. Even when a more concrete definition of the principle can actually be found in theory, practical application does not always follow (Sedmak et al. 2015). Moreover, many European countries have not adopted formal procedures for best interests determination, which is one of the reasons why the policies and treatment of unaccompanied minor migrants is subjected to discourses of neoliberalism, nationalism, xenophobia, racism and the like. Formally assessing and determining their best interests in all decisions affecting the lives of unaccompanied minor migrants would mean a further step towards measures for higher standards of protection in ensuring additional procedural safeguards.

Who are unaccompanied minor migrants?

Unaccompanied minor migrants are individuals under the age of majority, who for various reasons leave their home countries and live without their parents or legal or customary guardians. This group includes minors in a variety of circumstances: for example, minor migrants who have left their countries alone, children who have been separated from their families along the migration journey, and first-or second-generation migrants whose parents have been deported (Bhabha 2009). They may be separated from both parents or from their previous legal or customary primary caregiver, but not necessarily from other relatives or adults who are not de jure responsible for taking care of the minor. The term ‘unaccompanied minor migrant’ thus highlights the fact that these minors are not being cared for by an adult who, by law or custom, is responsible for doing so. Additionally, the term recognises that separation from their parents puts minor migrants in a particularly vulnerable and uneasy position.

Unaccompanied minor migrants arriving in Europe are generally boys aged between 14 and 17,¹ and frequently come from economically less developed countries where their educational opportunities are limited or where there are ongoing armed conflicts or other forms of violence, such as Afghanistan, Syria, Eritrea, Somalia, Gambia and Morocco. While their numbers in the EU member states ranged between 11,000 and 13,000 over the period from 2008 to 2013, this almost doubled in 2014 to reach slightly more than 23,000 individuals, and nearly quadrupled in 2015, when 88,300 asylum seekers applying for international protection in the member states of the EU were considered to be unaccompanied minors. They arrive in Europe on foot, by plane or ship, or hidden in trucks and trains via smuggling networks without proper documentation for a legal stay.² The European Migration Network (EMN 2015) reports that unaccompanied minors often flee their country for economic and aspirational reasons, poverty or a lack of opportunities for education and employment, whereas others migrate for safety reasons, fear of persecution or serious harm, violation of human rights, armed conflicts and religious or political unrest. Some leave because of domestic violence, recruitment as child soldiers and forced marriages (Hopkins and Hill 2008).

The United Nations High Commissioner for Refugees (UNCHR) highlights that the motives for fleeing one’s country of origin are not always known. Some minors are too young to fully grasp their reasons for migration; some are not able to share their experiences with the authorities due to trauma or other issues; others are reluctant to reveal the real reasons for fear of being deported or because they wish to protect their families. The act of departure should be considered an attempt to resolve the (critical) situation they are in with one decisive action. From this perspective, their departure should be seen as a desperate act of (self) protection (Kirkpatrick 1992). Moreover, some authors point to a feeling of guilt on the part of children on the move because in leaving a dangerous situation, and being privileged to do so, they have left their families behind (ibid.). As explained in a UNCHR study, the decision for minors to travel unaccompanied is often approved by family members as the minors themselves usually do not have sufficient resources to cover the cost of the journey. Despite many of the families knowing the risks of irregular migration, they choose to send their children either because they see the potential benefits as outweighing the risks or because they feel they have no choice but to send them (UNHCR 2014). The paradox of this situation is articulated by Christiansen and Foighel (1990, cited in Kohli 2014): parents send their children away into the unknown because they love them even though they know they may permanently lose contact with them as a result.

The unaccompanied minor migrants arriving in Europe are usually allowed to enter state territories regardless of whether they meet the entry requirements. In contrast to adult migrants, they can only be returned to their country of origin or to a third country to a member of his or her family, a nominated guardian or an adequate reception facility in the state of return (Return Directive 2008: Article 10). Non-asylum-seeking minors who do not fulfil the entry conditions may thus be refused entry at the border and returned to their own country later on in the migration process through assisted return. If unaccompanied minors apply for asylum, they live in migrant reception facilities and gain access to certain rights while awaiting a decision on their application. In the event that their claim is refused, they will not normally be granted a residence permit and are expected to return to their home country. As previously mentioned, due to their minority they cannot be returned unless they are sent to a member of their family, a nominated guardian or an adequate reception facility. As a result, only a few unaccompanied minors return voluntarily, while most continue to live in reception centres until they are close to 18 years old (UNICEF 2015). At the European level, there is no accurate aggregated data regarding how many unaccompanied minor migrants receive permanent residency. Due to existing conflicts and war zones, the recognition rates for international protection have increased. For example, in Germany it rose from 36 per cent in 2010 to 84 per cent in the first three months of 2015 (SCEP 2015), while in Belgium it reached 69 per cent in 2015 (SCEP 2016).

The vulnerability of unaccompanied minor migrants

From the Western perspective, childhood is generally thought to be one of the most vulnerable periods of an individual’s life as this is a time of intense formation of self-understanding, self-identity and worldviews. Children are viewed as vulnerable because of their inexperience, naiveté, fragility and general physical and psychological weakness. It is during this period, as they are becoming adults, that they receive formal or informal education and learn how to adapt to everyday life challenges. Along with primary socialisation, children also develop within the formal education system. In the European context (and also reflected strongly in the CRC), formal education is seen as an instrument which offers support for the development of a child’s identity, personality, talents and physical and psychological skills. These are all perceived as vital in order for children to progress and enjoy equal opportunities in present-day society. Equally important is enjoyment of leisure activities, engaging in play and recreational activities, and participating freely in the arts and cultural life. Social support and medical care are likewise decisive factors for accomplishing optimal growth in children.

Unaccompanied minor migrants are often deprived of some of what is typically perceived to be a ‘normal’ childhood. In this respect, they are recognised as being vulnerable and exposed to risk. Vulnerability, as defined by Enenajor (2008), refers to the presence of factors that increase the chance of exposure to harms such as physical and mental abuse, whereas risk is described as a condition that increases the likelihood of negative developmental outcomes. The vulnerability of children is reflected in national and international legislation which applies to individuals who fall within a specific age range from birth up to the age of majority. For example, the CRC recognises children as a vulnerable group of people in need of additional protection: ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth’ (preamble). Due to their dependency, children are vulnerable when living in settled family conditions and even more so when they lack sufficient means for a decent and proper existence. The UNHCR (1994) additionally identifies refugee children as vulnerable because they are susceptible to disease, malnutrition and physical injury.

Many countries have policies concerning groups of children who are seen as more vulnerable due to their challenging circumstances. Sadako Ogata, former United Nations High Commissioner for Refugees, reasonably asserts that refugee children face far greater dangers in regard to their safety and well-being than the average child (UNCHR 1994). He draws attention to the sudden and violent onset of emergencies, the disruption of families and community structures, and the acute shortage of resources which deeply affect the physical and psychological conditions of refugee children. In the midst of emergencies and in the search for solutions, the separation of families continues to affect refugee children of all ages. As Spinder (cited in Enenajor 2008) believes, it is separated children in particular who are one of the most vulnerable groups among refugees and asylum seekers.

Unaccompanied minor migrants travelling without their parents are additionally vulnerable owing to the demanding travelling conditions; they need the support of adults not only for physical survival, particularly in the early years of childhood, but also for their psychological and social well-being (UNHCR 1994). Moreover, they are at risk of being manipulated and are particularly susceptible to the influence of adults. They are often exposed to unpredictable dangers at the hands of smugglers or to rights violations in the custody of police when apprehended at transit points or destinations. Undocumented minors who live in host societies outside institutional care are additionally vulnerable as they are considered to be particularly exposed to the risk of trafficking, sexual or economic exploitation and violence.

There are other consequences of separation from parents. Unaccompanied minors are deprived not only of their normal social, economic and cultural environment but also of their emotional development. Unaccompanied minor migrants lose their role models by leaving their families. Parents normally act as role models for their children, contributing significantly to the development of their identities and to their acquisition of skills and values (UNHCR 1994). Their development is further hampered by the loss of their normal livelihood and pattern of daily life, which results in a critical change as minors become solely responsible for taking care of themselves at a very early stage. As vividly expressed by Kohli: ‘in becoming forced migrants and refugees, they experience the death of everyday life’ (2014: 84). Some are not up to the task without the support of a social network and are consequently further at risk of neglecting their developmental and emotional needs because of separation from their parents. A range of possible emotional, developmental and behavioural issues has been noted with unaccompanied minor migrants, including problems sleeping, concentration disorders, nightmares, depression, withdrawal, anxiety, post-traumatic stress symptoms, somatic symptoms, severe grief reactions and sadness, aggression, diminished interest, hyper-arousal, low self-esteem, severe feelings of guilt, a fatalistic view of the future, substance abuse, violent behaviour, suicidal acts, psychosis and delinquent behaviour (Derluyn and Broekaert 2008).

The continuity of experience required for normal development may be further undermined for refugee children when they come into contact with different cultures. In many cases, the language and customs of the local population in the country of asylum, as well as that of officials and aid workers, may be quite different from those of the refugee community (UNHCR 1994). The first years are the most stressful for newly arrived minor migrants and some of them regret leaving their homes; only after being separated from their family members and social network do they realise how difficult it is to be on their own without the protection and support of family. Unaccompanied minor migrants are constantly moving between the past and hopes for the future (Kohli 2014), and their life circumstances, specific life trajectories and the constant struggle to establish an ordinary everyday life contribute to their early maturation. An important aspect of the vulnerability of the unaccompanied minor migrant is that, in comparison with adults, minors generally have less capacity to independently achieve a good quality of life. They can be handicapped in this aspect due to their inexperience and naiveté. Last but not least, according to Mai (2010: 78), once they arrive in Europe, unaccompanied minors ‘fall into places marked by a specific set of opportunities and possibilities, which are already established places of marginality and irregular/illegal livelihoo...