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The Legal Status of Unaccompanied Children Within International, European and National Frameworks Protective Standards Vs

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The Legal Status of Unaccompanied Children Within International, European and National Frameworks Protective Standards Vs PUCAFREU PROJECT: PROMOTING UNPROTECTED UNACCOMPANIED CHILDREN’S ACCESS TO THEIR FUNDAMENTAL RIGHTS IN THE EUROPEAN UNION PUCAFREU Promoting unaccompanied Children’s Access to Fundamental Rights in the European Union Co-funded by the European Union’s Fundamental Rights and Citizenship Programme THE LEGAL STATUS OF UNACCOMPANIED CHILDREN ////////////////////////////////////////////// WITHIN INTERNATIONAL, EUROPEAN AND NATIONAL FRAMEWORKS PROTECTIVE STANDARDS VS. RESTRICTIVE IMPLEMENTATION EDITED BY DANIEL SENOVILLA & PHILIPPE LAGRANGE Published in 2011 within the framework of the PUCAFREU Project « Promoting unaccompanied children’s access to fundamental rights in the European Union ». This project has been co-funded by the European Union’s Fundamental Rights and Citizenship Programme. The contents, facts and opinions expressed throughout this publication are the responsibility of the authors and do not commit neither the European Union Institutions nor any of the other public or private Institutions involved in the PUCAFREU Project. Cover and interior design and formatting: Daniel Gazeau Language review: Robert Parker, English Coaching THE LEGAL STATUS OF UNACCOMPANIED CHILDREN WITHIN INTERNATIONAL, EUROPEAN AND NATIONAL FRAMEWORKS PROTECTIVE STANDARDS VS. RESTRICTIVE IMPLEMENTATION EDITED BY DANIEL SENOVILLA & PHILIPPE LAGRANGE PUCAFREU PROJECT: Promoting unprotected PUCAFREU unaccompanied children’s access to their Promoting unaccompanied Children’s Access to Fundamental Rights in the European Union fundamental rights in the European Union Co-funded by the European Union’s Fundamental Rights and Citizenship Programme FOREWORD Moreover, as the contents of this document apply to all FOREWORD unaccompanied children, we will not be referring specifically at this point to “unprotected unaccompanied children”. (INCLUDING SOME DEFINITIONS OF TERMINOLOGY AND CONTENTS) With regard to the contents, the first chapter of this document examines the contents of the United Nations Convention on the Rights of the Child and its interpretation he PUCAFREU project (Promoting unaccompanied of- and adequate implementation to- the situation of Tchildren’s access to their fundamental rights in the unaccompanied children. Daniel Senovilla has divided this European Union), is co-funded by the European Union’s chapter in four main sections. The first one includes an Fundamental Rights and Citizenship programme. The project analysis of the four general principles of the United Nations is coordinated by the French CNRS (National scientific Convention. In the second stage, we study those children’s research centre) through its research unit MIGRINTER and rights that are directly linked to the care and protection with the support of research unit CECOJI, both based at the of unaccompanied children. The third section deals with University of Poitiers in France. durable solutions particularly focusing on those that are often implemented to unaccompanied children within the European context (return to the country of origin whether The main and most challenging working remit of the for family reunification purposes or integration into the PUCAFREU project involves conducting research into the host society). Finally, the fourth section is devoted to other situation of unaccompanied children living in the European rights or contents of the United Nations Convention that are Union space and staying unprotected outside the care and relevant to the unaccompanied children’s legal treatment the control of State authorities. We have initially named this and status. In all these parts, we have reviewed all of the target group as “unprotected unaccompanied children”. most relevant sources (Committee on the Rights of the Child, UNICEF, United Nations High Commissioner for Refugees, Separated Children in Europe Programme) and we have This document constitutes a first stage of the project included our own parallel analysis. research process and proposes a theoretical and legal analysis of the legal treatment and status of unaccompanied migrant and asylum seeking children in different contexts The European Union legislative framework concerning and at different levels. The United Nations Committee on unaccompanied children has been examined in chapter two. the Rights of the Child has set up a double definition of this Céline Lageot has firstly analysed the different EU Directives migration distinguishing between “unaccompanied children” on Asylum and Immigration focusing on the contents that those “who have been separated from both parents and refer to unaccompanied children. As well as this, in the other relatives and are not being cared for by an adult who, second section of this chapter Daniel Senovilla carries out a by law or custom, is responsible for doing so” and “separated first assessment of the contents of the European Commission’s children”, those “who have been separated from both Action Plan (2010-2014) on unaccompanied minors. parents, or from their previous legal or customary primary caregiver, but not necessarily from other relatives”1. The third chapter explores the Council of Europe framework. In the first part, Juan Manuel Lopez Ulla provides These two categories are of interest to the PUCAFREU an in-depth examination of the European Court of Human project. However, considering that within the EU context Rights’ relevant jurisprudence concerning unaccompanied the term predominantly used is “unaccompanied children” children, including a fresh analysis on the recent 2011 Court or “unaccompanied minors”, we have decided to prioritise decision ruling against Greece for the detention and release in this document the term of “unaccompanied children”. of an Afghan teenager seeking asylum. The second part by Marie Françoise Vallaud is devoted to all other regulations 1 Committee on the Rights of the Child (2005): General Comment nº 6 on the treatment of unaccompanied and separated children outside and recommendations from the Council of Europe concerning their country of origin, CRC/GC/2005/6 of the 1st September 2005, unaccompanied children. paragraphs 7 & 8. PUCAFREU PROJECT: PROMOTING UNPROTECTED UNACCOMpaNIED CHILDREN’S ACCESS to THEIR FUNDAMENtaL RIGHTS IN THE EUROPEAN UNION FOREWORD Finally, the fourth chapter presents an analysis of the legal national contexts and administrative practices of the destination countries of the PUCAFREU project (France, Spain, Belgium and Italy). Lélia Tawfik underlines the generalized lack of adequacy of national regulations with respect to the contents of the United Nations Convention on the Rights of the Child. Three different stages of the procedure are analysed: the arrival and reception of the unaccompanied child; the access into the care system and finally the identification of a durable solution. Summing up, the contents of this document reflect an overview of the legal regulations concerning unaccompanied children at both international (United Nations, European Union and Council of Europe context) and national levels. These contents also identify some of the potential gaps and contradictions in legal regulations and constitute an ample basis from which to explore the probable root causes leading unaccompanied children living in the European Union space to refuse, abandon or be excluded from institutional care services and hence become unprotected. 6 PUCAFREU PROJECT: PROMOTING UNPROTECTED UNACCOMpaNIED CHILDREN’S ACCESS to THEIR FUNDAMENtaL RIGHTS IN THE EUROPEAN UNION PUCAFREU PROJECT: Promoting unprotected PUCAFREU Promoting unaccompanied Children’s Access unaccompanied children’s access to their to Fundamental Rights in the European Union Co-funded by the European Union’s Fundamental Rights and Citizenship Programme fundamental rights in the European Union CHAPTER 1 SOME KEY ASPECTS ON THE INTERPRETATION OF THE CRC CONTENTS AND ITS APPLICATION TO THE SITUATION OF UNACCOMPANIED CHILDREN OUTSIDE THEIR COUNTRY OF ORIGIN. Daniel SENOVILLA HERNÁNDEZ he United Nations Convention on the Rights of the Child1 (hereafter, CRC or the Convention) Tconstitutes the foremost international legal instrument to protect and support children’s rights worldwide. By mid-2011, only two States -Somalia and the United States of America- had not yet ratified the Convention. The 27 European Union Member States and most of the States from where unaccompanied children come from have therefore committed themselves to respect and implement all principles and rights to all children under their national jurisdictions. So far, most of the existing literature has focused on a general analysis on the interpretation of the CRC contents2. However, there are very few references devoted to the interpretation and implementation of the CRC principles, obligations and rights to aid the situation of children on the move. The core instrument that up until now has analysed in-depth the situation of unaccompanied children outside their country of origin is the General Comment n°6 (2005) of the Committee on the Rights of the Child3. Besides this, other specialized publications from international United Nations agencies or private humanitarian institutions are also worth highlighting. Amongst these are the United Nations High Commissioner for Refugees (UNHCR) guidelines on the child’s best interest determination process4 and the publications from the Separated Children in Europe Programme, particularly its position papers and its widely known Statement of good practice5. In this first chapter, we will analyse in depth the key contents of the CRC and its
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