Unaccompanied Young Migrants

Identity, Care and Justice

Clayton, Sue, Gupta, Anna

• Éditeur: Policy Press
• Année: 2019
• ISBN:
  9781447331896
• Édition: 1
• Sujet: Scienze sociali
• Sous-sujet: Studi sull'infanzia in sociologia

Taking a multi-disciplinary perspective, and one grounded in human rights, Unaccompanied young migrants explores in depth the journeys migrant youth take through the UK legal and care systems. Arriving with little agency, what becomes of these children as they grow and assume new roles and identities, only to risk losing legal protection as they reach eighteen? Through international studies and crucially the voices of the young migrants themselves, the book examines the narratives they present, and the frameworks of culture and legislation in to which they are placed. Challenging existing policy, it questions, from a social justice perspective, what the treatment of this group tells us about our systems and the cultural presuppositions on which they depend.

SECTION 1

Framing the youth migration debate

ONE

Migration regimes and border controls: the crisis in Europe

Sue Clayton and Katie Willis

Introduction

The protection of unaccompanied young migrants seeking asylum, some of the most vulnerable people within the estimated 244 million people who are currently living outside their country of birth (International Organization for Migration, 2016), is encompassed in a number of key international agreements. According to Article 14 of The Universal Declaration of Human Rights, ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution.’ This right is also embedded in the 1951 UN Refugee Convention (see Chapter Two). Additionally, the 1989 United Nations Convention of the Rights of the Child (UNCRC) provides an important framework for recognising children as independent social actors, but requiring child-sensitive approaches and protection. However, ‘there is no single instrument in international law that sets out the full range of obligations that a state owes in respect of a refugee child’ (Pobjoy, 2017: 22). Thus, despite these global level agreements, and perhaps also reflecting the lack of a single coherent regulation, how such instruments are implemented and experienced by migrants varies greatly, reflecting significant differences in the migration regimes adopted by individual states and groups of states.

This lack of coherence – for our concerns here, both within Europe, and beyond European borders – makes it extremely difficult for non-governmental organisations (NGOs) and other actors to assess and secure what provision can be made available to unaccompanied young migrants seeking asylum, and we would argue causes a great deal of unnecessary suffering as they either do not access their rights or are considerably delayed in doing so. Recent changes in Europe, including the 2016 EU/Turkey and the 2017 Italy/Libya agreements have further complicated the situation on the ground for the thousands of unaccompanied minors in Europe (see Amnesty International, 2017: 25–6, for discussion of implications of the EU/Turkey deal for unaccompanied children in Greece).

Such difficulties are predicated on contradictions inherent in the evolution of the state itself. Reece Jones, in his 2016 book Violent Borders, highlights the constructed nature of states: ‘States have not always existed. Along with nations, borders and territories, they were created to address problems of control that emerged over the past 5,000 years’ (Jones, 2016: 4). The socially-constructed nature of borders and the way in which borders are constantly being recreated through the actions of individual border guards, immigration officials and migrants have also come to the fore in recent work (see, for example, Mountz, 2010; Gill, 2016). Borders are now understood not only as lines on a map, or the hard materiality of wire fences, or brick walls, but through the discourses and practices that are used to exclude certain individuals or groups from a particular territory.

This chapter explores the diversity of migration regimes with reference to unaccompanied young people to reveal how they are forced to navigate complex legal systems, and the regulatory frameworks that are supposed to provide them with support and protection, but which all too often fail to deliver. We first examine the role of scale (global, regional, national, provincial, municipal) in the development and implementation of migration regulations for unaccompanied youth. There is a particular focus on the EU and its member states, as this exemplifies how regulations can be differently interpreted and implemented at different scales.

The chapter then considers border practices and the effects of offshoring to process migrants applying for asylum, or as an attempt to reduce immigration. The formal processing of migrants outside national territories demonstrates how migration regimes are not necessarily neatly mapped according to state boundaries. The porosity of borders is then considered. Following international agreements, it may be assumed that national borders would be relatively porous for unaccompanied young people seeking asylum, but practices on the ground, as well as within legislation, reveal, as we discuss later in this chapter, that there is significant diversity based on factors such as gender, age and perceived nationality.

After an overview of these broad themes, the chapter focuses on the case of unaccompanied minors who came to Calais as part of their intended journey to the UK. Drawing on Sue Clayton’s work with young people in Calais, elsewhere in France, Belgium and the UK, we argue that laws which are supposed to protect unaccompanied young people are not implemented in full, and that young people are not able to access the support which would enable them to benefit from these laws.

Migration regimes and international law

Supporting refugees fleeing persecution, recognising the particular vulnerabilities of children, and protecting children migrating without adult family members are all incorporated into key international conventions and regulations (see Chapter Two for more detail). However, operationalising these through national laws and policies on the ground results in significant diversity as international consensus comes up against national politics and variations in willingness and ability to implement policies that fulfil the spirit of the international agreements. Laws and policies are also implemented at scales other than the national, most notably regional levels, such as the EU, and sub-national levels, including provincial or municipal level.

Within the EU, while there is freedom of movement between EU member states for EU nationals (following a transition period following accession for some countries), the nature of the Schengen Agreement means that there nonetheless remain some forms of border control within the EU. For example, the UK is only a partial signatory to Schengen, meaning that there are border controls to enter the UK from the states of Europe.¹ As will be discussed later in the context of Calais, this means that while refugees can in theory travel across Europe without having their documentation checked (King, 2016), the border between the UK and France is an external border of the Schengen zone. Post-Brexit arrangements are likely to complicate this further.

In relation to support for refugees, EU regulations relate to the EU as a whole, treating EU territory as one geographical space, but recognising individual national sovereignty within it. In 2013 the EU Dublin III regulation came into force. It specifies that though, generally speaking, a refugee should be processed in the EU country where they are first registered (fingerprinted), unaccompanied minors with close family in another European state are an exception, and should be allowed to proceed to the state where they have family to have their claim processed there. This is a very clear recognition in European regulations that age and migrant status are factors that justify differential treatment: borders operate differently according to legally-identified characteristics. A significant issue in relation to the operation of Dublin III is, however, the evidence required to support claims about family links, alongside the ongoing debates around age assessment (see Chapters Two and Three). In 2016, over 700 unaccompanied children came to the UK to join family members under the auspices of the Dublin III agreement (Unicef and Save the Children, 2017). Though, as discussed later in this chapter, Sue Clayton observed that, during the Home Office’s response to the demolition of the Calais ‘Jungle’ camp, many with strong Dublin lll claims were missed.

The complex interactions of UK, EU and international law regarding unaccompanied asylum-seeking children (UASC) will be examined in more detail later in this chapter with reference to Calais, but will also be developed in later chapters. There will also be more detail on the different legal frameworks and policies adopted in Scandinavian countries in Chapter Nine. Kanics and Senovilla Hernández (2010) draw out good and bad practice from across the EU with regard to data collection, models of reception and the development of durable solutions. They demonstrate very clearly how, despite signing up to common EU regulations, EU member states interpret and operationalise the regulations in contrasting ways (see also Allsopp and Chase, 2017). The diverse nature of unaccompanied minors, for example in age, nationality, gender and religion, can also be reflected in differential application of legal protection. For example, de Graeve and Bex (2017) highlight the importance of an intersectional approach that acknowledges how different dimensions of identity interact in care relationships of unaccompanied minors in Belgium.

The focus of European attention on the plight of unaccompanied minors within the continent, or approaching its borders, is understandable, but it is vital to acknowledge the young people migrating elsewhere in the world. Unicef (2017: 6) estimated that in 2015–16 at least 300,000 UASC were registered in 80 countries, but the figure is likely to have been much higher because of the difficulties of collecting data. In Section 3 of this book, Robinson and Gifford discuss the situation in Australia (Chapter Ten), while in Chapter Eight, Mario Bruzzone and Enrique González-Araiza discuss the operation of controls on UASC at the US–Mexican border, a border where about 100,000 unaccompanied minors were apprehended in 2015 and 2016 (Unicef, 2017: 12).

Both Lebanon and Jordan have received significant numbers of refugees in recent years, most notably from Syria, but also from other countries in the region. UASC are part of these refugee flows, but their treatment as particularly vulnerable individuals has not always been recognised. Lebanon and Jordan have both ratified the UNCRC, but neither country is signatory to the UN 1951 Refugee Convention. In the case of Lebanon, 2016 changes in documentation requirements for border entry and residency renewal have left UASC between the ages of 15 and 17 with no legal options. This is because people aged 15 and over must have their own documentation, but 15–17 year olds need to have a signature from a parent or guardian. As a study by Intersos and MMP (2017: 22) concluded, ‘Unaccompanied minors, therefore, do not have any legal pathway to residency, despite being legally required to regularise their stay.’ For UASC in Jordan, a 2014 law requiring refugees to live in formal camps, rather than within the wider Jordanian society, has failed to work in the ‘best interests of the child’ with regard to living conditions and access to services (Intersos and MMP, 2017).

Thus, the experiences of UASC in being able to claim their rights to protection under international agreements, are filtered through different scales of law and policy making.

Borders, territoriality and sovereignty

The complexity of migration regimes in dealing with international law reflects the widespread acceptance that nation states have sovereignty over their territory, including decisions about who should cross their borders. Here, however, we challenge assumptions about where borders are and their fixity, through examining processes of extra-territorial border policing, focusing on the Le Touquet Agreement, the work of Frontex in patrolling EU waters and Australia’s formal offshoring arrangements with neighbouring islands. Extra-territorial border policing has taken on increasing importance in certain parts of the world as refugee flows have increased. While this form of border control may be a pragmatic decision for national governments, for unaccompanied minors, it can have very negative impacts on their wellbeing and ability to get to a place of safety.

To help in the management of the France–UK border, in 2003 UK and France signed the Le Touquet Agreement, which instituted UK border checks at all ferry ports along the northern French and Belgian coasts for border control and the policing of migrants (King, 2016). This was updated in January 2018 in the ‘Sandhurst Treaty’ (UK Government and Government of France, 2018). But the UK does not provide any processing of claims at Calais, making the ‘queue’ and its security the liability of the French. This was done in exchange for substantive payments to the French government, estimated to be £100 million with an additional £45 million committed for 2018 as part of the Sandhurst negotiations. This money is used to fund physical infrastructure, most notably fencing around the port entrances, and increased policing, including riot police (Compagnies Republicaines de Securité, CRS). The presence of the UK border on French soil, as well as the particularly brutal forms of border policing adopted, have had very negative impacts on UASC seeking to come to the UK, as we illustrate later in this chapter.

The EU has been developing ‘border externalisation policies’ since the 1990s (Casas-Cortes et al, 2017). These policies have involved trying to reduce migration towards Europe through working with non-EU countries to share surveillance and directly intervene in migrant flows. The massive increase in the numbers of refugees seeking to access Europe via maritime routes across the Mediterranean since 2013 has led to other forms of border policing such as shared EU activities and attempts to discourage migration by interventions in North African waters. However, shifts between EU-wide and national strategies, as well as focus on different parts of the Mediterranean, have resulted in diverse policies, sometimes with tragic outcomes.

Reporting on their ‘Forensic Oceanography’ project, Heller and Pezzani (2016) detail the disastrous consequences of the surveillance-based form of border policing, rather than humanitarian intervention, that characterised EU maritime bordering practices in the early 2010s. Following the deaths of at ...