On Monday 14 June 2021, the EPSCO Council unanimously adopted the Council Recommendation establishing a European Child Guarantee. In a clear signal to both children and governments, the Council’s text states that all children in need must be able to benefit from the Child Guarantee actions, irrespective of their migration status. This momentous step forward cannot be underestimated, as activities supporting undocumented people have long been excluded from EU funding in the past. But with member states now tasked with developing national Child Guarantee action plans, national governments and civil society must make sure that undocumented children in need can and will benefit in practice.

Opening up access to key services

According to the Council Recommendation, undocumented children and children in migration who are “at risk of poverty or social exclusion” should have effective and free access to high-quality early childhood education and care (ECEC), education and school-based activities, at least one healthy meal each school day and healthcare. They should also have effective access to healthy nutrition and adequate housing.

As shown in PICUM research, all of these areas of life are rife with difficulties and exclusion for undocumented children and families. Undocumented children and families often live in cramped, unhealthy housing, need to overcome financial or administrative barriers to go to school, are excluded from early childhood education and care, may not be eating healthy because of a tight family budget and, depending on where they live, may only be able to benefit from emergency health care.

The Council Recommendation sets a precedent because with it, member states commit to prioritising children’s needs over their residence status. For children in migration, and especially undocumented children, this recognition is hard-won and far from self-evident. As was made clear in the child guarantee feasibility study, undocumented children face more barriers than other migrant children when accessing the services targeted by the Child Guarantee.

The Child Guarantee could also open the door for undocumented children and families to receive benefits connected to accessing ECEC, education, school-based activities, healthcare and one healthy meal per school day because ‘free access’ is to be understood as services being “provided free of charge, either by organising and providing such services or by adequate benefits to cover the costs or the charges of the services, or in such a way that financial circumstances will not pose an obstacle to equal access.”   

Prioritising children’s needs over their residence status

The European Child Guarantee is part of a broader trend by the EU institutions to prioritise people’s needs over residence status in its social policies. For instance, the EU Strategy on the Rights of the Child (2021-2025) clarifies that all children are targets of the strategy and Commission representatives have confirmed that that includes undocumented children. The EU Action Plan on Integration and Inclusion (2021-2027), too, differs from its predecessor, the 2016 Action Plan on the integration of third-country nationals, by not limiting its scope to regularly-residing people. The European Pillar of Social Rights Action Plan, of which the EU Child Guarantee is a deliverable, also sets the goal of lifting at least 5 million children out of poverty by 2030. This recent trend of inclusive policies is very positive, and we hope it will continue.

However, we see a very different trend in Europe’s approach towards migration. Both at member state and EU-level, the trend towards more detention and fewer safeguards for children and adults continues to gather support. Most concerningly, the 2020 Migration and Asylum Pact does not adequately safeguard or protect children even though key European and global institutions have recognized that migrant children are highly vulnerable members of our society and their best interests overrides migration management considerations.

This contradiction of recognizing a child’s needs and rights over their residence status in one policy field while not doing so in another is not sustainable. Especially when we know that undocumented children’s vulnerability and social exclusion is partly caused by their residence status, restrictive migration policies and the lack of options to regularise their stay. If the proposed Migration and Asylum Pact will prevent migrants from accessing in-country residence procedures, set up a return sponsorship scheme that rips undocumented families from their support networks to drop them in an unknown country, or cause trauma and additional vulnerability through the widespread use of detention – children will not be set up for success. Nor will the proposed Migration and Asylum Pact create the necessary preconditions for a successful integration policy because it erodes migrants’ resilience and trust in the system.

Leveraging EU funds to tackle child poverty and exclusion

Because the Child Guarantee activities would complement existing national-level actions and funding, several EU funds will be financing its implementation. After months of negotiations, the European Parliament, Council and Commission, agreed that member states will earmark an “appropriate amount” of the European Social Fund Plus (ESF+) to tackle child poverty and exclusion, and member states with an above-average number of children living at risk of poverty or social exclusion earmarking at least 5%. For the 2021-2027 financing period, these countries are Bulgaria, Cyprus, Greece, Ireland, Italy, Lithuania, Luxemburg, Malta, Romania, Spain and Sweden.

It will soon become clear how committed member states are to lifting children out of poverty. A clear indicator will be seeing what member states consider an “appropriate amount” and whether they target more difficult-to-reach populations, like undocumented children and families.

Going beyond the recommended actions

Member states should understand the recommended activities listed in the Council Recommendation as a first step. For instance, regarding access to healthcare, the Council only recommends to member states that they facilitate early detection and treatment of diseases and developmental problems; implement accessible health promotion and disease prevention programmes targeting children in need and their families; and provide targeted rehabilitation and habilitation services for children with disabilities. It is evident that these do not, alone, equate to effective and free access to health care for children in need. That is why member states must go beyond what is recommended by the Commission or the Council and consider the effective needs of children and what hampers them from enjoying these services.

Member states should immediately appoint a national Child Guarantee Coordinator. Member states now have until March 2022 to present national actions plans that are adapted to national, regional and local circumstances, and identify children in need and the barriers they face in accessing and taking-up the services above.

Member states cannot do this alone, however. Because they are often invisible, there is a lack of understanding of the barriers undocumented children and families face, what they need and even how many undocumented children are living in specific country. It is up to civil society, specialists and migrant-led organisations to assist member states in developing national action plans that target and effectively benefit undocumented children. And it is up to member states to ensure they are consulted and involved in the drafting of the plans.

As PICUM, we are glad to see the route taken by this Commission and the Council with their recognition that children’s interests are primordial – including when children have irregular migration status. We hope that the national action plans will reflect the intent of the Parliament, the Commission and the EPSCO council and ensure that undocumented children can fulfil their potential.

Employment, Social Policy, Health and Consumer Affairs Council (EPSCO)

A.o. by the European Court of Human Rights in Mubilanzila Mayeka and Kaniki Mitunga v. Belgium and Tarakhel v. Switzerland.

The UN Committee on the Rights of the Child, underlined that “non rights-based arguments such as, those relating to general migration control, cannot override best interests considerations.” in General Comment no. 6, Treatment of unaccompanied and separated children outside their country of origin

Cover: Unsplash – Mi Pham 

On 27 April 2021, the EU Commission published its first EU Strategy on voluntary return and reintegration. The strategy is envisaged by the New Pact on Migration and Asylum as an integral policy for a common EU system for returns. It conceives actions in seven areas with the aim of increasing the number of voluntary returns. If, on paper, the text recognizes voluntary return as being more efficient, cost-effective and preferable to forced return, in practice this is contradicted by several ongoing legislative proposals which make access to voluntary return more difficult. The text highlights the role of “swift and efficient return border procedures” to encourage migrants to take up voluntary returns, including for people in administrative detention and those whose asylum application is still pending. The Strategy increases the role of Frontex in promoting voluntary returns, despite the growing scrutiny into the lack of accountability and the potential involvement of the agency in human rights violations.

 “Voluntary” returns?

Increasing the rate of returns is one of the main objectives of the European Pact on Migration and Asylum. The term “return” appears nearly 100 times in the Commission Communication on the Pact alone – while the term “rights” only 14. While forced return remains a central component of the EU return system, the objective of this strategy is to develop a more uniform and coordinated approach that acknowledges the potential of voluntariness within the return process. Even though the number of returnees is still considered a strong indicator for the effectiveness of any return policy, this strategy recognizes that “it is important to not only consider the return rates but also the situation of the individuals concerned, enabling their return in a dignified manner and taking into account their reintegration prospects once they return to their country of origin”.

On paper, the strategy – a non-binding instrument – prioritises voluntary over forced return, but in practice this is contradicted by several binding legislative proposals which make access to voluntary return more difficult. For instance, the Commission proposal for a Recast Return Directive prohibits EU Member States from granting a period for voluntary departure in a broad number of circumstances which legitimise a risk of absconding. Moreover, migrants are openly encouraged to return from the very moment they arrive in the EU through return counselling – which can be provided by Frontex – even during their asylum application, and by the constant threat of swift and efficient return procedures, including at borders, for those who do not agree to return voluntarily. Encouraging voluntary returns through “swift and efficient return border procedures” confirms the EU “carrot and stick” approach, for which “an efficient return border procedure will also facilitate and encourage voluntary returns since people will be available and more willing to cooperate with the authorities” (EU Strategy on voluntary return and reintegration,p.7).

Frontex will have an increasing role in voluntary returns

With its reinforced mandate, Frontex will play a crucial role in the activities of return and reintegration assistance to returnees. In mid-2022, Frontex will take over the activities of the European Return and Reintegration Network (ERRIN). The full operationalisation of the Agency’s mandate is a gradual process that started in May 2021 with a first Frontex pilot for individual joint reintegration support to returnees from the EU. In collaboration with ICMPD, the Agency will also be involved in the development of a common curriculum for return counsellors, which aims at providing practitioners with teaching modules on all aspects of return policy and practice. Frontex will support Member States by deploying return experts trained in return counselling as part of the standing corps. In addition, it will have an increased role in “pre-return counselling (e.g. outreach campaigns to migrants), post-arrival support and monitoring the effectiveness of reintegration assistance.

Further technical support and the new roles on return foreseen by the Pact

The strategy indicates that additional technical support will be guaranteed by the Return Coordinator and the High Level Network for Return, including representatives from Member States. They will assist the coordination of national authorities on voluntary return and reintegration strategies and programmes, to promote uniformity between national actions and this strategy, and to promote the exchange of best practices among Member States. This support aims at achieving a comprehensive governance framework as set out in the proposal for a Regulation on Asylum and Migration Management.

Prioritising voluntary over forced returns is a welcome step, but it is not sufficient

On the Roadmap published on 15 December 2020, the European Commission describes “shaping returns to respond to the needs of the individual” as one of the main objectives for the EU and EU agencies and the Member States. If, on the one hand, this strategy recognizes voluntary return as being more efficient and preferable to forced return, the EU Commission commitment to respond to the needs of the individual remains on many levels unclear in the document published in April 2021.

Firstly, it is crucial to acknowledge that return is not the best option for all. Secondly, when voluntary return is possible, EU policies should ensure that people and their choices come first. Human choices are not pre-packaged products, but rather the result of accurate evaluations that require time and services to allow people to explore all different options, including the possibility to remain regularly in the EU. While the Commission’s efforts to prioritise voluntary over forced returns are a welcome step, encouraging people to return by all possible means and from the very moment they arrive at borders is far from being a strategy that meets migrants’ freedom of choice nor their needs.

Present data on voluntary returns are not clear. According to the EU Commission, “the share of voluntary returns is currently 27% of all departures from the EU”. Frontex Risk analysis 2020, instead, reported that 49 % of returns are voluntary (table 13, p. 67).

Cover: Unsplash – Nathan Dumlao