“Children and Irregular Migration”

Side Event prior to the United Nations Day of General Discussion (DGD) on “The rights of all children in the context of international migration”

The Platform for International Cooperation on Undocumented Migrants (PICUM) together with UNICEF, Migrants’ Rights International (MRI) and Migrant Forum in Asia (MFA) held a side event on 27 September, 2012, a day prior to the DGD, where strong calls sounded for the full and inclusive implementation of the Convention of the Rights of the Child in regards to the rights of all children, including those in an irregular migration situation.

The chair, Mr. William Gois, Regional Coordinator of Migrant Forum in Asia, began by highlighting the need to redress the lack of focus in discussions about migration policy on the families of migrant workers, and to ensure policies address issues facing families. He welcomed the framework of the Convention on the Rights of the Child (CRC) and current events for providing the focus.

The event opened with an interview with Leyla, an undocumented mother of two, living in Amsterdam. This interview, from PICUM’s recently launched web-documentary called “Undocumentary” offered participants crucial insight into the daily struggles of an undocumented mother and sparked thoughts on issues such as the scope of the right to family life, the obligation of the state to assist parents to fulfil their role as caretakers and the role of migration status in the “best interest of the child” assessment.

To view the video, click here.

Leyla’s testimony provided a crucial backdrop to the contributions of the ensuing panel of speakers who highlighted challenges as well as policy measures to enable children of migrants in countries of origin and undocumented children in countries of destination to uphold their human rights.

Ms. Marta Mauras, Vice-Chair of the Committee on the Rights of the Child, opened with a strong statement reassuring that: “The Convention applies to all children regardless of their migration status or any other status. All children are children first and foremost”. She also talked about possible opportunities in framing the issue of undocumented migrants in the broader migration debate and listed a few key principles for doing so within the CRC:

  1. Non-discrimination clause (art.2) must be interpreted in a way that allows each child to be protected against discrimination based on the immigration status of their parent.
  2. Best interest of the child principle has to take priority and not just be “taken into account”. There has to be a set of objective criteria but no “cookie cutter” formula is possible, as every situation should be evaluated individually.
  3. The child’s right to survival and development (art.6) is crucial and must be applied to all children regardless of status.
  4. The child’s right to be heard in any judicial and administrative proceedings affecting them, in an appropriate way, including in the context of migration.

Ms. Mauras also highlighted some key challenges regarding the rights of undocumented migrant children:

  1. Most countries do not have specific provisions in place allowing non-citizen children to access all child rights.
  2. False assumptions that unaccompanied migrant children are always victims of trafficking are widespread.
  3. Criminalization of irregular migrants is a serious hindrance in the realization of the rights of the child. Irregular stay should not be considered as a criminal offence and punitive measures to irregular migration do not offer a solution.
  4. Challenges regarding maintaining family unity, which were nicely summarized in a comment by Leyla, in the interview:  “Being legal is not the question, being together is the challenge!”
  5. Migration detention of children is still applied in most countries, which poses a serious challenge to the fulfillment of rights. The Committee on the Rights of the Child is strongly opposed to the detention of children in any circumstance for migration purposes.

Ms. Mauras also mentioned the importance of a data collection system that would provide adequate and diversified data while assuring that collection of data would not lead to possible human rights violations.

Ms. Rhea Saab, Social Policy Specialist and Migration Focal Point at UNICEF presented some views of UNICEF on this issue, considering the situation of all children in the context of migration, as a holistic group, recognising how, for example, a child ‘left behind’ may later become an undocumented child if they migrate to join their parents later and do not qualify for official family reunification. She presented some good examples of progress from around the world, such as the United States, where in June 2011, the Obama Administration issued an Executive Order granting Deferred Action for Childhood Arrivals to provide temporary residence permits to some young migrants up to 30 years old who entered the US before age 16.  Nevertheless, Ms. Saab stressed the need for more to be done. For example, UNICEF field offices around the world are currently seeing situations where children unwillingly left behind by migrant parents have limited access to social protection in countries of origin, face difficulties receiving remittances and are grappling with psychosocial challenges. They are also seeing children being refused basic education and health care in countries of destination because of their or their parents’ migration status; children detained alongside adults in completely inappropriate conditions and children whose parents are deported being put up for adoption.

UNICEF called for on-going and comprehensive debate and analysis on the impact of migration on the rights, well-being and development of all children affected by migration, in countries of origin, transit and destination. Ms. Saab highlighted some of the main priorities of UNICEF in this field as well as key recommendations to national and international actors. A specific recommendation to the Committee on the Rights of the Child, as well as states and civil society involved in monitoring implementation of the CRC, was to improve the monitoring regarding children affected by migration. Other recommendations included: the prioritization of children’s rights and the best interests of the child over migration policy considerations and reforming law and policy to ensure access to civil, economic, and social rights and to basic services for all children in the context of migration, regardless of migration status. UNICEF also suggested that children affected by migration should be included in national level social protection systems, and since the well-being of children is intimately linked to that of their parents, called for further specific protection and promotion the right to family life. UNICEF also encouraged states to tackle violence, racism and xenophobia, as key issues facing children in the context of migration. UNICEF finally called for the avoidance of criminalization of children due to migration status, and emphasized that detention is never in the best interests of a child and children should never be detained even under the pretext of ‘preserving family unity’. She concluded by making a broad plea for the promotion of access to regular and safe migration channels and secure residence status: “Living with the fear and uncertainty of insecure residence has long-term implications for children’s development and emotional health”.

Mr. Mehmet Sevim, Counselor at the Embassy of the Republic of Turkey, and Member of the UN Committee on Migrant Workers, gave an overview of the progress made by the UN Migrant Workers Committee on the question of undocumented migrant children as a follow up from the Day of General Discussion on Irregular Migrant Workers and Their Families in 2011. Participants were informed that a General Comment regarding undocumented workers and their families is being prepared. While outlining the key rights for the children of migrant workers contained in the Migrant Workers Convention, including access to basic services such as education and health care, Mr. Sevim also took the opportunity to encourage ratification of the Convention, noting that the majority of rights were established in other human rights instruments, such as the CRC. In comment, PICUM Director Michele LeVoy invited the Migrant Workers Committee to ensure that discussions around migrant workers’ families look specifically at access to services, and the other key human rights concerns raised by the various speakers.

Offering insight from the perspective of countries of origin, Mr. Jesus Domingo, Minister and Consul General from the Permanent Mission of the Philippines to the UN, spoke about the impact of migration on the children remaining in the countries of origin. He made reference to the social cost of troubled childhoods as a result of migration. Leaving children behind for labour migration may result in a positive financial outcome for the family but at a high emotional and societal cost. As a core element of its framework for the rights and interests of Filipino migrant workers, the Philippine government has set up the Philippine Overseas Employment Administration (POEA), which offers pre-departure orientation for prospective migrant workers and assistance in seeking redress, as well as psychosocial reintegration of migrants after return. The Overseas Workers Welfare Administration also provides various welfare services and benefits through small contributions paid by members to a central fund.

Mr. Domingo also mentioned the role the Philippines Consulate plays in Switzerland in providing legal and counseling services for all migrants regardless of status, highlighting the potential role for consulates of countries of origin in destination countries in promoting the rights of migrants and assisting migrant workers. He suggested that the welfare of migrant workers should be a foreign affairs priority for countries of origin. Finally, he emphasized the importance of looking towards the other end of the issue and encouraging debate around alternatives and opportunities in countries of origin in order to give people reasons to not migrate.

The final speaker, Ms. Constanza Argentieri, from Mercosur’s Institute for Human Rights Policies,introduced various promising policy examples from the South American region. She presented an overview of a request for an advisory opinion on the rights of migrant children before the Inter-American Court of Human Rights prepared by the Mercosur countries in July 2011. The report, driven by grave and continuous violations of the rights of undocumented children, presents the countries’ consensus on the human rights standards and equality that should be applied for the protection of undocumented children. It addresses issues such as child detention, best interest assessment, non-refoulement principle and the right to family life. “The right of a child not to be separated from his or her parents and the principle of family unity must be strictly taken into account in the assessment of the migratory situation of the parents, especially when ordering measures such as deportation”, urged Ms. Argentieri.

She continued to elaborate on the implementation gap between progressive treaties from the region on the human rights of migrants and domestic policies, as in some countries legislation is still in place that contradicts some of the basic standards concerning family reunification, criminalization of irregular migration, expulsion measures etc. She concluded by calling for the: “strengthening of the link between immigration system and the child rights protection mechanisms” in the region.

PICUM Director Michele LeVoy concluded the session, after short discussion with participants, pointing to the examples of legislation from South America as inspiring, providing some of the most comprehensive rights protection for undocumented migrants globally, despite, at least in the case of Argentina, being developed at times of economic crisis. For the final word, Ms. LeVoy echoed UNICEF’s request to the Committee on the Rights of the Child to systematically monitor implementation of the Convention in respect to children in the context of migration, and to ensure that the DGD the next day, and work of the Committee in the years to come, tackles the issues faced by all children in the context of migration.
Follow PICUM on Twitter and Facebook to keep yourself updated with what PICUM and its members are doing.
For any additional information please contact:
Kadri Soova, PICUM Advocacy Officer
+32 (0) 2 210 17 80

Related Posts