This article was written by Laetitia Van der Vennet, PICUM’s Advocacy Officer for undocumented children, families and youth.
“Someone somewhere is making a decision about my life right now. And it scares me to death knowing the decision could be negative” – Nishta, 24-year old and undocumented, 2016.
Migrant children, especially those living with their families, remain invisible in many of the processes and decisions that directly impact their lives.
The consequences are very real for the children involved: three quarters of children returned to Afghanistan, whether unaccompanied or accompanied by their family members, for example, that were interviewed by Save the Children said that they felt unsafe during the return process, with more than half reporting coercion or violence. A third of children returned to Kosovo showed symptoms of post-traumatic stress disorder and a quarter had thought of suicide when they were visited by UNICEF staff.
With growing political pressure on administrations to step up returns, children are increasingly vulnerable to violations of their human rights.
That is why the International Organisation for Migration (IOM), Unicef, the UN Human Rights Office (OHCHR), Child Circle, the European Council on Refugees and Exiles (ECRE), the Platform for International Cooperation on Undocumented Migrants (PICUM) and Save the Children have developed guidance for state authorities in the European Union on the design and implementation of a decision-making process that considers durable solutions for migrant children – whether they are accompanied by their parents or not.
“Guidance to respect children’s rights in return policies and practices: Focus on the EU legal framework” provides European governments with practical steps to take and safeguards to put in place when considering, finding and implementing a durable solution that is in the best interest of the child.
A durable solution is one that protects the long-term best interests and welfare of the child and is sustainable and secure from that perspective. The outcome should ensure that the child is able to develop into adulthood in an environment which will meet their needs and fulfil their rights as defined by the Convention on the Rights of the Child (CRC) and will not put the child at risk of persecution or serious harm. A secure and long-term residence status is a vital part of any durable solution, whether it involves integration in the country of residence, resettlement or reunification with family members in a third country or the country of origin.
A procedure that puts children at its centre.
The best interests’ procedure has to start as soon as possible – whether it is carried out when a child is found to be irregularly present on the territory or when a residence permit is refused, withdrawn or not renewed. It must be a formal, individual and fully-documented process, examine all aspects of a child’s situation and consider all options in order to identify which durable solution is in the best interests of the child before any decision is taken.
It must be undertaken by a multi-disciplinary, independent and impartial team that duly hears and considers the views of the child and provides, or ensures the provision of, child-friendly information, counselling and support.
Finally, the best interests procedure must lead to a reasoned, documented decision that can be appealed with suspensive effect. The child must have access to free legal assistance throughout the procedure.
Noteworthy practices already exist, both implemented by governments and international organisations. IOM, for instance, requires a best interest determination to organise an assisted voluntary return and reintegration of an unaccompanied child, in addition to the agreement of both guardians (both in the country of destination and country of origin), the implementation of a family assessment in the country of origin and the express will of the child.
In one case, a 15-year-old boy wanted to return to his country of origin because he did not see a future where he was. He had left his home looking for education but could no longer go to school after his asylum claim was rejected. The boy applied for assisted voluntary return so the child protection agency in whose care he was, contacted IOM to carry out a family assessment. As the visits found that a return lacked any development perspectives for the boy, the child protection agency took steps to ensure that the boy was given a residency permit designed specifically for the situation of unaccompanied children for whom the return to their families is not in their best interests. That residence permit granted full access to education and vocational training until adulthood, while not excluding access to different residence permits upon entry to adulthood, provided relevant criteria for those were present.
A best-interests procedure for the identification of durable solutions also ensures that countries uphold their child rights obligations, as all EU member states have ratified the UN Convention on the Rights of the Child, which applies to migration and return procedures as well.
Critics have worried that such a procedure would be too expensive and will always result in the same durable solution: integration in the country of residence. To the contrary, many children wish to return but their voices are not heard.
When return is in the best interest of the child.
If return is found to be in the child’s best interest, it should always be implemented through voluntary departure with assistance before, during and after return. The period of voluntary departure should be agreed with the child and family, giving them the opportunity to prepare and get their affairs in order. All the conditions that are necessary for the return to be in the child’s best interest have to be in place, including an uninterrupted access to education.
If the family doesn’t return in the voluntary departure period that was agreed with them, the decision needs to go back to the multidisciplinary panel which should consider:
- why the return didn’t happen as agreed;
- whether the circumstances underlying the return decision have changed or not: another durable solution might have become more appropriate or another period for voluntary departure might be the best way forward;
- whether the essential safeguards are in place before removal can be considered, and always as a measure of last resort.
The guidance lists the different operational safeguards without which a removal cannot be carried out. Throughout, the multidisciplinary panel needs to consider the views of the concerned child(ren) and other actors.
Whichever the durable solution, an implementation plan should be developed together with the child and their primary caregivers.