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Child-Sensitive Return a Comparative Analysis

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Child-Sensitive Return a Comparative Analysis Child-Sensitive Return Upholding the best interests of migrant and refugee children in return and reintegration decisions and processes in selected European countries (Germany, the Netherlands, Sweden and the United Kingdom) A comparative analysis A joint UNICEF National Committees (Germany, the Netherlands, Sweden and the United Kingdom) and UNICEF Private Fundraising and Partnership Division (PFP) Project Author: Melanie Teff With support from: Julie Lebegue (UNICEF PFP), Karin Ödquist Drackner (UNICEF Sweden), Alexander Carnwath (UNICEF UK), Desiree Weber (Germany) and Eva van Aalst (UNICEF Netherlands) With contributions from colleagues from UNICEF Private Fundraising Partnerships Division, UNICEF Programme Division Headquarters, UNICEF Public Partnership Division Brussels and UNICEF Regional Office for Europe and Central Asia. This report has been peer reviewed both externally and within UNICEF. Design: Schone Vormen Editing: John Hemy Geneva, November 2019 2 ACKNOWLEDGEMENTS This return and reintegration comparative research project was developed through a broad consultation and participatory process, and benefitted from the support, insights, and expertise of many individuals and organizations. This report forms a part of a wider UNICEF research project on return and reintegration. We wish to firstly extend our most sincere appreciation to the UNICEF National Committees in the United Kingdom, the Netherlands, Sweden, and Germany, and in particular to their advocacy migration specialists – Alexander Carnwath (UK), Dragan Nastic (UK), Eva van Aalst (the Netherlands), Majorie Kaandorp (the Netherlands), Karin Ödquist Drackner (Sweden), and Desirée Weber (Germany) – for their intellectual, logistical, and financial support, and for their fruitful collaboration. This project was initiated and supported by UNICEF PFP, and Julie Lebegue in particular, who has led and supervised the project. Thanks go to Melanie Teff, the author of the comparative report, for her dedicated and professional work in bringing together findings from the four countries into the comparative report, and to the researchers who conducted research at country level: Melanie Teff and Lisa Payne in the UK; Johanna Hökeberg in Sweden; Martin Vegter and Roos de Wildt in the Netherlands; and James Edwards, Silke Borgstedt, Inga Borchard, Jochen Resch (from SINUS Mark SINUS Markt- und Sozialforschung GmbH) and Alexander Bagattini in Germany. We sincerely thank our colleagues from New York, Verena Knaus, Irene de Lorenzo-Caceres Cantero, Saskia Blume, and Noela Barasa; from Brussels, Natalia Alonso Cano; and from Geneva, Jonathan Veitch, Elizabeth Wabuge, Laurent Chapuis, Marta Arias, Codi Trigger, and Dailo Alli Alonso, for their valuable contributions to and support for the launch and amplification of the report. We would also like to thank DLA Piper for their legal analyses on return at the country level, John Hemy for his editing work, and Schone Vormen, and Cyril Tjahja in particular for his design work. Finally, we would like to thank all those who were interviewed or contributed information. This includes representatives of national and local authorities and independent inspectorates, monitors and panels, guardians, lawyers and social workers, as well as colleagues from a wide range of civil society and legal organizations and UN agencies (UNHCR and IOM) and INGOs (Save the Children). All gave generously of their time and expertise, and this research was only possible due to their participation. It is our hope that this report, together with the four individual country reports, will provide an important basis for continued advocacy and dialogue, and will contribute to improved policies and processes on return and reintegration of refugee and migrant children, centred around the best interests of the child. 3 4 TABLE OF CONTENTS List of acronyms 7 Definition of key terms 8 Executive summary 12 PART I: INTRODUCTION & BACKGROUND 28 1 Background and Key Principle 29 1.1 Background 29 1.2 A key principle: the Best Interests of the Child 30 1.3 UNICEF priorities on the return and reintegration of children 31 2 Methodology 33 3 Legal and policy framework on the return and reintegration of migrant and refugee children 34 3.1 Global and regional legal and policy framework on return and reintegration 34 3.2 Summary of existing legal and policy framework by country, compared with children’s rights key principles in the CRC 36 4 Country contexts: authorities in charge at national level and data on return 42 4.1 Authorities in charge at national level 42 4.2 Data on Returns: facts and gaps 43 PART II: FINDINGS 45 5 Findings 46 5.1 Best interests assessments and determinations 46 5.2 Asylum/Immigration determination procedures 53 5.2.1 Access to legal support 53 5.2.2 Accelerated procedures 55 5.2.3 Right to be heard in proceedings/child participation 56 5.2.4 Appeals 58 5.2.5 Delays 59 5.2.6 Alternative regular migratory status for children not eligible for asylum 60 5.2.7 Particular considerations for unaccompanied & separated children 63 5.3 Return decisions 69 5.3.1 Child Notices on countries of origin 69 5.3.2 Children with special needs 70 5.3.3 Children reaching 18 years of age 71 5.3.4 Best interests assessments/determinations 72 5.3.5 Unaccompanied children 74 5.4 Return and reintegration planning 75 5.4.1 Accompanied children – return counselling 77 5.4.2 Unaccompanied children – returns counselling, and planning for family tracing and reunification or for adequate reception facilities 79 5 5.4.3 Child-friendly information on returns and reintegration 83 5.5 Circumstances in which returns may not be viable 86 5.6 Maintaining family unity 88 5.7 Detention and alternatives to detention 90 5.8 Departure – forced returns 94 5.9 Monitoring of forced returns 97 5.10 Reintegration support 98 5.11 Monitoring after return 103 PART III: CONCLUSIONS AND RECOMMENDATIONS 106 6 Conclusions 107 7 Recommendations 110 7.1 General recommendations 110 7.2 Specific recommendations (by country and by topic) 112 Bibliography 122 6 LIST OF ACRONYMS BAMF Bundesamt für Migration und Flüchtlinge (German Federal Office for Migration and Refugees) BIA Best Interests Assessment BID Best Interests Determination CMW Committee on Migrant Workers (in full, The Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, a body of the OHCHR) COA Centraal Orgaan opvang Asielzoekers (Dutch Central Agency for the Reception of Asylum Seekers) COI Country of Origin Information CRC Committee on the Rights of the Child (a body of the OHCHR) DT&V Dienst Terugkeer & Vetrek (Dutch Repatriation & Departure Service) ECHR European Convention on Human Rights ERRIN European Return and Reintegration Network EU European Union ICIBI Independent Chief Inspector of Borders and Immigration (UK) IFRP Independent Family Returns Panel (UK) IND Immigratie en Naturalisatiedienst (Dutch Immigration and Naturalization Service) IOM International Organization for Migration MoU Memorandum of Understanding OHCHR Office of the High Commissioner for Human Rights (United Nations Human Rights) REAG/GARP Reintegration and Emigration Programme for Asylum-Seekers in Germany and Government-Assisted Repatriation Programme SBP Swedish Border Police SMA Swedish Migration Agency (Migrationsverket) UASC Unaccompanied and Separated Children UKVI United Kingdom Visas and Immigration (a division of the Home Office) UNCRC United Nations Convention on the Rights of the Child (often also shortened to CRC) UNHCR United Nations High Commissioner for Refugees (the United Nations Refugee Agency) UNICEF United Nations Children’s Fund 7 DEFINITION OF KEY TERMS Child – any person under the age of 18 years old. Separated child – a child who has been separated from both parents, or from their previous legal or customary primary caregiver, but not necessarily from other relatives.1 Unaccompanied child – a child who has been separated from both parents and other relatives and is not being cared for by an adult who, by law or custom, is responsible for doing so.2 Guardian – an independent person who safeguards an unaccompanied and separated child’s best interests and general well-being, and to this effect complements the limited legal capacity of the child. The guardian acts as a statutory representative of the child in all proceedings in the same way that a parent represents a child.3 Best interests of the child principle – Article 3 of the UNCRC (1989; entry into force 1990) in full declares that: “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision”. The CRC further explains the nature, scope, and implementation of the best interests of the child in its General Comment No.
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