ww CHildrEn on THE MovE An Urgent Human Rights and Child Protection Priority A report by the FXB Center for Health and Human Rights at Harvard University HARVARD FXCENTER FOR HEALTH & HUMANB RIGHTS ACKNOWLEDGMENTS This report was researched and authored by Jacqueline Bhabha (principal investigator), Christine Bohne, Vasileia Digidiki, Elizabeth Donger, Rochelle Frounfelker, Jeff Glenn, Alexandra Lancaster, Susan Lloyd McGarry, Nevena Milutinovic and Shanoor Seervai, with assistance from Arlan Fuller of the François Xavier Bagnoud (FXB) Center for Health and Human Rights at Harvard University. We are grateful to the Oak Foundation for supporting this research and report. ©2016 Francois Xavier Bagnoud Center for Health and Human Rights. Available for non-commercial use under the Creative Commons Attribution-Noncommercial 3.0 Unported License for all content, except for photographs. The Harvard FXB Center for Health and Human Rights holds the philosophy that there should be no financial barriers to access information. The Attribution-Noncommercial license (http:// creativecommons.org/licenses/by-nc/3.0/) lets people freely copy, distribute, remix, and build upon contributors’ work, provided it is not used to make a profit and the original authors and the FXB Center are appropriately acknowledged. These conditions can be waived if the FXB Center, as copyright holder, grants potential users explicit permission. Suggested citation: Bhabha, Jacqueline, et al. Children on the Move: An Urgent Human Rights and Child Protection Priority. Boston: Harvard FXB Center for Health and Human Rights, 2016. Design and layout by Tezeta Tulloch. Photos by Angela Duger and Hector Lucero. All rights reserved. HARVARD FXB CENTER – Children on the Move: An Urgent Human Rights and Child Protection Priority 2 TABLE OF CONTENTS Children on the Move Framing Review 4 A map of existing protection frameworks, overarching issues, and areas for improvement Children on the Move Learning Review 38 Risk factors, Responses, and Recommendations Appendix: Case Studies About Children on the Move 72 Examples of Good Practice: Germany, Sweden, and the United Kingdom 73 In Transit: On and Through Lesbos, Greece 96 En Route Through Europe: On the Western Balkan Route via Serbia 123 Exclusionary Practices: The Difficulty of Entering the United States and Australia 144 The Impact of Persistent Exclusion: Rohingya Leaving Myanmar 166 Internal Migration: From Bihar to Rajasthan, India 184 Living Rough: On the Street in Senegal 198 HARVARD FXB CENTER – Children on the Move: An Urgent Human Rights and Child Protection Priority 3 CHILDREN ON THE MOVE FRAMING REVIEW A Map of Existing Protection Frameworks, Overarching Issues, and Areas for Improvement INTRODUCTION Children have migrated for centuries to es- cape conflict and persecution at home; to leave behind destitution and unemployment; for purposes of exploitation, for family re- union, and for a better life. Today, children are an important part of large-scale popu- lation movements involving millions of peo- ple. They will likely be increasingly affected in coming decades as a result of globaliza- tion, socioeconomic transformation, and cli- mate change. Despite increasing attention to 1 the vulnerabilities of these “children on the move,”1 existing legal and policy instruments to protect their fundamental rights have not been thoroughly examined. This review pro- CHAPTER vides a map of the relevant frameworks to protect children on the move and outlines the shortcomings of these frameworks. It makes recommendations for a more comprehensive approach that protects children’s fundamen- tal rights and prioritizes their needs, irrespec- tive of their immigration, nationality, or docu- mentation status. Although there is an authoritative interna- tional definition of a child — “every human being below the age of 18 years unless un- der the law applicable to the child, majority is attained earlier”2 — there is no comparable definition of a migrant child. The Inter-Agen- cy Working Group on Children on the Move has described this population as: “Children moving for a variety of reasons, voluntarily HARVARD FXB CENTER – Children on the Move: An Urgent Human Rights and Child Protection Priority 4 or involuntarily, within or between countries, cern for preventing avoidable separation of with or without their parents or other prima- families: indeed, approaches focused on de- ry caregivers, and whose movement, while it terring family separation are broadly lacking may open up opportunities, might also place in child migration legislation and policy. Fam- them at risk (or at an increased risk) of eco- ilies are also conceived narrowly by much nomic or sexual exploitation, abuse, neglect international and domestic migration law, and violence.”3 within a restrictive and traditional idea of a nuclear family.8 This approach fails to reflect As the former Special Rapporteur on the children’s culturally diverse realities and ex- Human Rights of Migrants Jorge Bustaman- cludes the global prevalence of “functional te has noted, migration laws, policies, and families”: configurations “in which ... relatives programs lack specific provisions on chil- and non-relatives, live in the household, ei- dren on the move: children are often invisi- ther in addition to or instead of the expected ble, seen as appendages to the family unit. nuclear family members.”9 The attached Ser- Additionally, “public policies aimed at pro- bia case cites research showing that these tecting child rights in general . have not individuals often provide support to children yet taken into account the specific condition during migration planning and journeys. As and needs of migrant children.”4 Where the a result of this failure of law to reflect reality, law does address this population, it consid- millions of children are separated from sup- ers only discrete subpopulations of exploited port networks whose potential protective role and abused children on the move (trafficked, remains untapped. refugee, smuggled). As a result, children These siloed legislative frameworks fail to whose lived experiences fit within multiple cover the lived circumstances of most child categories are often denied protection and migrants and are therefore radically incom- basic services, and the very real needs of plete. They are also ineffective because their other child migrants are overlooked. Analy- implementation is erratic, supported by un- sis of children on the move has in large part derfunded and ill-equipped legal services focused on the issue of trafficking.5 Yet this and by fragmented bureaucracies that have is not synonymous with all children’s move- been structured to cope with a much smaller ment, and the focus on criminality has had demand for protective care than exists. Fi- unintended, sometimes negative impacts, for nally, there is no international body or senior other children on the move.6 official; no United Nations department, insti- tute, or treaty body charged with responsibil- More recent discourse has examined the ity for migrant children per se. needs and vulnerabilities of “unaccompa- nied alien children” or “independent child This framing review outlines the body of ap- migrants” with the rationale that they are plicable legislation and its limitations. It then “least catered to by specific child migration identifies several overarching issues with cur- measures, [so], a fortiori, legislative provi- rent approaches, and, finally, makes concrete sions that apply to them apply to the oth- recommendations for a more effective “hori- er groups of child migrants too.”7 However, zontal” approach to children on the move. there has been no equivalent surge in con- HARVARD FXB CENTER – Children on the Move: An Urgent Human Rights and Child Protection Priority 5 CONCEPTUAL MAP: LEGAL FRAMEWORKS AND DEFINITIONS There is no single piece of legislation that sys- as well as punish traffickers, and refugee law tematically and comprehensively addresses can be both protective and punitive. the issue of children on the move. As a re- sult, the extensive relevant international, re- Regulatory Approach gional, and domestic law has an inconsistent Regulation is the primary goal of most do- and incomplete impact on child migrants. For mestic and regional migration-related law. clarity, the following analysis of the body of This legislation largely assumes that children applicable legislation is divided according are dependents of the family unit, without to the three principal approaches to child autonomous agency: “It does not deal with migration: regulatory, criminalizing, and pro- the needs and circumstances of most chil- tective.10 These are not discrete categories. dren who travel independently of their fami- For example, much regulatory migration law lies.”11 Independent child migrants have very criminalizes children’s movement across bor- limited ability to move legally. They can use ders, trafficking law serves to protect children established education and training schemes Table 1.1 Legal Frameworks for Children on the Move Regulatory Most domestic and regional immigration law Approach Assumes traditional family unit Criminalizing Smuggled children [UN Smuggling Protocol, 2000] Approach Trafficked children [UN Palermo Trafficking Protocol] Protective International and regional UN Universal Declaration of HR, Approach human rights bills 1948 UN Intl Cov’t on Econ., Soc., & Cult. Rights, 1966 UN Intl Cov’t on Civil & Political Rights, 1966 Convention on the Rights of the