Doing What’s Best for Children
The bulk of decisions about migrant children’s futures are made without duly considering the impacts on the children concerned or whether the decision is in that child’s best interests. This puts their well-being and future at risk and violates their rights as children.
Where a child lives has significant impact on their future. In decisions concerning migrant children, the government decides if the child or family can stay in the country where they live or has to move elsewhere. Sometimes their decision goes against the will of parents and what they think is best for their child or what the child wants.
When decisions on children’s futures are made, the focus should be on creating the environment for them to have their rights as children protected and to reach their full potential. A procedure should be put in place to ensure that when governments decide on children’s futures, they prioritise children’s rights. This may mean granting them permission to continue living in the country or helping them move to their country of origin and/or to reunite with family members elsewhere.
Children should only be returned when a fair procedure has found it is in the best interests. A best interests procedure for the identification of durable solutions for children in migration should be put in place by all countries.
Find out how this can be done below.
WHAT CAN I DO?
As a policy maker, you can support the development and implementation of a best interests procedure to determine a durable solution for the child and their family.
Guidance to respect children’s rights in return policies and practices: focus on the EU legal framework has been developed jointly by PICUM, UNICEF, the UN Human Rights Office (OHCHR), the International Organization for Migration (IOM), Save the Children, the European Council for Refugees and Exiles (ECRE) and Child Circle. The document is aimed at policy makers and EU member states and proposes a best interests procedure that respects child rights, including safeguards when return to the country of origin is deemed in the best interests of the child.
At the same time, you can also strengthen existing or develop new schemes to regularise the status of undocumented children, young people and their families. Our 2018 Manual on regularisation of children, young people and families might inspire you.
Read and get informed about the issue. Children’s futures are at stake. You can also take action on the local level. Local mobilisation and voices are key in bringing about change. In cases involving undocumented children, people have taken joint action on the local level by mobilising their community and showing solidarity, or by building coalitions between a broad range of actors. Others have crowd-funded for legal fees incurred by undocumented migrants.
Our 2018 Manual on regularisation of children, young people and families contains a catalogue of methods, used in different countries, which might inspire you (pp. 80-81).
When hearing about a student at risk of being deported, school communities – teachers, parents, school social workers, school nurses, classmates, etc – can work together to try and attract attention. School communities have played a crucial role in regularisations of children and their families in several countries by showing the young person and their family are part of the community and denouncing attempts to deport them.
It is important to make sure that the young person agrees with your plan before taking action.
If a student is leaving, make sure you address the situation with the other children and say goodbye. Leaving will affect the child, your class and school community and all need to grieve appropriately.
For inspiration and actions undertaken by teachers and school communities in France and The Netherlands, consult our 2018 Manual on regularisation of children, young people and families.
Know your rights. You may have a right to appeal or you may have grounds for regularisation, depending on the country where you reside. Contact an organisation or pro bono lawyer specialised in migration issues to get informed or assist you. Build relationships with the people around you and create a support network.
Consult our members’ list to find organisations in your country or region working with and for undocumented migrants. Our 2018 Manual on regularisation of children, young people and families might contain information that is useful to you.
Would you like to know more?
Governments issue legal decisions requiring a person to leave the territory when they decide that person does not have or no longer has permission to stay in the country. These are called “return decisions” or “orders to leave the territory.” In such cases, people are considered to be “undocumented” or “irregular” migrants.
People can become undocumented in many different circumstances. For instance, when a study or work visa is revoked or runs out or when an asylum claim is refused. Some visas depend on being in a particular relationship and if that relationship breaks down – for instance in cases of domestic violence or in workplace exploitation – they may no longer be allowed to stay, even if there was a situation of abuse.
Children within families are more often than not seen as dependents of their adult parents, which means that the decision made towards their parents affects them as well. Their individual situation is not taken into account, often because the existing procedures do not look into whether or not a child might have a legal ground to stay irrespective of their parent(s). That means that some children are ordered to leave the territory while they do have grounds to receive a residency permit.
Unaccompanied or separated children do receive an individual decision.
After issuing a return decision or order to leave the territory, governments often take steps to deport children and their parents. The measures governments take often involve night-time raids by uniformed personnel, exposing children to violence. Being arrested and deported can be very traumatic for everyone involved.
Arrests are often followed by detention before the child is finally deported, although the UN Committee on the Rights of the Child has found that immigration detention is always a child rights violation and never in their best interests.
Read our 2019 policy paper Child immigration detention in the EU for more information on the detention of children, their families and the need to develop alternatives to detention.
“Someone somewhere is making a decision about my life right now. And it scares me to death knowing the decision could be negative,” writes Nishta.
She is not alone.
Children in migration express regular feelings of anxiety and fear of family separation and arrest and deportation of a parent or sibling. The threat and risk of deportation has negative impacts on their health and well-being. Many children and their parents do not access public services and fear engaging with authorities due to potentially being arrested and deported.
Procedures and practices vary across Europe, but the harm that the current practices have is both clear and substantial. According to a 2018 study by Save the Children, three in four surveyed children that had been returned to Afghanistan said they felt unsafe during the return process.
Few reintegration programmes focus on the specific social, educational or health needs of children being returned – if reintegration assistance is available at all. Schooling is very often interrupted for prolonged periods of time.
Reports from PICUM, UNICEF, IOM, Save the Children and ECRE, among others, document violations of children’s rights in the implementation of return policies across Europe. Recent proposals to change the EU’s return policy pose serious risks of increasing the prevalence of such violations.
Although the EU is working to collect more and better disaggregated data, there is not a clear picture of the numbers of children who are returned.
In 2017, EU Member States reported apprehending 618,800 undocumented migrants of which 79,300 were under the age of 18. Those who were apprehended were identified as irregularly present and issued a return decision or order to leave the territory. The number on apprehensions does not indicate whether or not they actually left – whether by themselves, through a programme that assists people to return or through deportation.
It may be determined that a child’s wellbeing, welfare, development and rights as defined by the UN Convention on the Rights of the Child may be best served in the long-term in the country of origin of the child or parent. However, before issuing any return decision, all possible solutions and their implications must be considered through a best interests’ procedure, with safeguards, as described in the guidance document.
If the procedure finds return is in the best interests of child, it must be organized in a way that also puts the child’s rights and well-being at the centre. Whether a child is unaccompanied, separated or within a family, they should also be provided with counselling, support and assistance to return voluntarily. For more information, see the joint brief with the six key steps or guidance document for more technical information. For an easy overview, check our flow chart.
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 and will not put the child at risk of persecution or serious harm.
A secure and long-term residence status is vital to ensure that children in migration access all of their rights, including their rights to well-being and development. A durable solution may involve integration in the country of residence, or resettlement or reunification with family members in the country of origin or in a third country, with support. When identifying a durable solution for a child, governments have a responsibility to investigate all options and the implications for the child in order to identify what is in their best interests.
For an easy overview, check our flow chart.
A durable solution can be found through a best interests’ procedure. It must be a formal, individual and fully-documented procedure examining all aspects of a child’s situation and considering all options in order to identify which durable solution is in the best interests of the child. It must be undertaken by a multi-disciplinary, independent and impartial team that duly hears and considers the views of that child and provides or ensures the provision of child-friendly information, counselling and support. It 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. Whichever the durable solution, an implementation plan should be developed together with the child and their primary caregivers.
For the more information on the procedure and the next steps when return is found to be in the best interests of the child, see the joint brief (six key steps) or the more detailed guidance document. For an easy overview, check our flow chart.
When local integration and settlement is found to be in the child’s best interests, the child should be provided with a secure, long-term/settled residence status and families should be kept together in the country of residence unless there are safety or child protection concerns related to the family.