Fulfilling the Rights of Migrant Children in EU External Action

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Across the globe, human mobility is at significant levels [1]. However, migration to the EU represents only a small part of the overall global migration. According to the compilation of available data from national authorities and IOM offices, a total of 144,166 migrants and refugees arrived in Europe between January and December 2018, 23 per cent less than the 186,788 recorded in 2017, and 63 per cent less than the 390,456 in 2016. On average, one in every four was a child. This included 34,200 children, over a third of whom (12,000) were either making the journey alone or become separated from their families while en route [2].

There is growing international consensus that concerted and coordinated actions among countries of origin, transit and destination are needed to enable safe and regular migration, protect children along migratory routes and ensure a non- discriminatory access to services, as well as to find alternatives to unsafe migration. Increasingly migration is a key issue in the EU’s actions concerning countries outside of the EU (EU external action). In relation to children in migration, this encompasses a wide range of different measures with different purposes, including addressing the factors driving forced migration, actions which can promote legal migration, actions to strengthen child protection for children in transit, and measures to find durable solutions for children.

There are a huge range of challenges to address in external action, given that children move for a variety of different reasons. And while migration can bring safety and often can be an empowering experience and a driver of inclusive, economic and social development, it can often be unsafe, in particular, when children move against their will, when they move through irregular pathways or when they move alone. In these cases, children may be exposed to human rights violations and violence (including during migration enforcement or detention by States). They may experience discrimination, abuse, exploitation, and trafficking including for sexual exploitation or labour exploitation. Children may suffer from physical, psychological and mental health problems during their journey. Restrictions on family migration can also lead to family separation and children travelling independently of their family to rejoin them.

Many children undertake very perilous journeys while trying to reach Europe and some die along the migratory routes. According to the IOM Report ‘Fatal Journeys’ over 17,900 people died attempting to cross the Mediterranean Sea between 2014 and 2018, including 678 children. Migrants traversing the Sahara get stranded in the desert because they are abandoned by smugglers and left in the excruciating heat, with little food or water. In 2017 more than 1,700 migrant deaths have been recorded while travelling within Africa, with over 690 reported in the Sahara desert (IOM 2017 figures).

Children sometimes are returned from the EU to countries which do not have sufficient child safeguards in national legislation and policies to deal with their individual needs (such as health or training and education) or the difficult situations in which children may find themselves (e.g. at risk of re-trafficking). They may also be returned to countries where they may face discrimination or limited access to essential services. Often children are returned without any best interests’ determination and without proper coordination with the country to which they are returned. In many cases children are returned to or disembarked in (e.g. after a search and rescue operation in the Mediterranean sea) third countries in which they face a real risk of human rights abuses and violations.

Many countries lack formal procedures to determine statelessness, while not all stakeholders, such as asylum officials or border guards, have the capacity or knowledge to identify statelessness or nationality. That means that stateless children travelling through Europe may have their nationality registered incorrectly or their risk of statelessness not identified, which in turn leads to difficulties accessing appropriate protections and assistance or processes such as facilitated naturalisation.

EU policies, agreements, measures and programmes in cooperation with partner countries have the potential to improve the protection of children from unsafe migration and to uphold the right to liberty of movement of children and their families to leave any country, including their own, as recognized by Art.12 of the International Covenant on Civil and Political Rights and its CCPR , General Comment 27, Art.12 (Freedom of movement).

In relation to the protection of children’s rights in the EU external migration policy, the following UN Child Rights Clusters used for country reporting to the Committee on the Rights of the Child (periodic review) are a useful points of reference: general measures of implementation, definition of the child, general principles, civil rights and freedoms, violence against children, family environment and alternative care, basic health and welfare and special protection measures.

Relevant guidance can be drawn from the following General Comments of the UN Committee on the Rights of the Child:

General comment No. 2 (2002): The Role of Independent National Human Rights Institutions in the Protection and Promotion of the Rights of the Child

General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside Their Country of Origin

General Comment No. 8 (2006): The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment

General Comment No 12 (2009): The right of the child to be heard

General Comment No 13 to Article 19 CRC: The rights of the child to freedom from all forms of violence

General Comment No. 14 (2013): The right of the child to have his or her best interests taken as a primary consideration

General comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health

General Comment No.19 (2016): Public budgeting for the realization of children’s rights

Joint General Comment No. 3 of the CMW and No. 22 of the CRC in the context of International Migration: General principles

Joint General Comment No. 4 of the CMW and No. 23 of the CRC in the context of International Migration: States parties' obligations in particular with respect to countries of transit and destination

General legal provisions

Treaty on the European Union (Art.3): “In its relations with the wider world, the Union shall uphold and promote its values and interests and shall contribute to peace, security, the sustainable development, eradication of poverty and the protection of human rights, in particular the rights of the child (...) as well as to the strict observance (…) of international law”.
EU Charter on Fundamental Rights (Art.24): “(…) children shall have the right to such protection and care as is necessary for their well-being and that the best interests of the child must be a primary consideration in all actions relating to children”.
Treaty on the Functioning of the EU (Art.208): states that Union policy in the field of development cooperation shall be conducted within the framework of the principles and objectives of the Union's external action; that EU development cooperation policy shall have as its primary objective the reduction and, in the long term, the eradication of poverty and the EU shall take account of the objectives of development cooperation in the policies that it implements which are likely to affect developing countries.

General policies, strategies and action plans

Pact on Migration and Asylum (2020) – Highlights that the common response to migration needs to include the EU’s relationships with third countries. Addressing the root causes of irregular migration, combating migrant smuggling, helping refugees residing in third countries and supporting well-managed legal migration are valuable objectives for both the EU and our partners to pursue through comprehensive, balanced and tailor-made partnerships.
EU Action Plan on Human Rights and Democracy 2020-2024 (2020) - Commits to advocate for respect, protection and fulfillment of the rights of the child. Promote and implement measures to prevent, combat and respond to all forms of violence against children. Assist partner countries in building and strengthening child protection systems. Support the development of quality alternative care and the transition from institution-based to quality family- and community-based care for children without parental care. Support the development of child-friendly justice systems for all children in contact with the law and deprived of liberty. Promote active citizenship and full participation of all, without discrimination, in public and political life. Civic education, including via distance learning and online media literacy action, should particularly target (...) children, (...), persons belonging to minorities, indigenous peoples, and other persons in vulnerable situations.
Global Approach to Migration and Mobility (GAMM) (2011) - The framework defines how the EU conducts its policy dialogues and cooperation with non-EU countries and embedded in the EU’s overall external action, including human rights and development cooperation policy.

Cooperation with third countries relevant to children in migration

EU Return Directive (2008/115/EC): see in particular recital 7 and 19 enhancing the need for cooperation with third countries and between the institutions involved at all stages of the return process. Currently the recast of the Return Directive is the subject of a Commission proposal under negotiation. The Return Directive is currently being revised based on the 2018 European Commission proposal. See also Spotlight Procedural Safeguards.
EU Anti-Trafficking Directive (2011/36/EU):“(…) actions should be pursued in third countries of origin and transfer of victims, with a view to raising awareness, reducing vulnerability, supporting and assisting victims, fighting the root causes of trafficking and supporting those third countries in developing appropriate anti-trafficking legislation”.
EU Regulation on the European Border and Coast Guard (Regulation 2019/1896): Section 11 describes the cooperation of the Agency. In particular, Article 71 provides for the cooperation of Member States and the Agency with third countries for the purpose of European integrated border management and migration policy. Following Article 72 the Agency shall act within the framework of the external action policy of the Union, including with regard to the protection of fundamental rights and personal data, the principle of non-refoulement, the prohibition of arbitrary detention and the prohibition of torture and inhuman or degrading treatment or punishment.
EU Strategy on Combatting Trafficking in Human Beings 2021-2025 (2021) – The Commission plans to ensure funding in non-EU partner countries to non-governmental organisations, migrant resource centres for supporting victims, including their psychosocial, taking into account gender and child-specific needs. It also plans strengthen partnerships with non-EU countries to ensure that victims’ rights are guaranteed during all the steps of the return process and that they receive specific, tailormade assistance and protection upon return, including specific safeguards for children.
EU Strategy on Voluntary Return and Reintegration (2021) – Includes supporting voluntary return and reintegration of migrants from/between third countries and helping to strengthen government bodies and migration governance structures in third countries. The Commission plans to: integrate and streamline as much as possible return and reintegration into development programming activities at national and local level in partner countries support the strengthening of third countries’ capacity to provide voluntary return and reintegration services.

European Commission and High Representative of the Union for Foreign Affairs and Security Policy Joint Communication Towards a comprehensive Strategy with Africa (2020) – Notes for the need for capacity building for effective migration management for African partners and that the EU and Africa should work towards more efficient and sustainable mechanisms, including through support for voluntary returns, and through the effective implementation and conclusion of readmission arrangements.

Valletta Declaration and Action Plan (November 2015): A political agreement among EU and African leaders, in which they agreed to manage migration flows in all their aspects together, guided by the principles of solidarity, partnership and shared responsibility. As an example of actions that promote protection of children in migration, EU and African leaders commit to:“(…) Support regional initiatives on children at risk, in order to ensure comprehensive and sustainable child protection to prevent and to respond to violence, abuse, neglect and exploitation of children (para 3).”
EU resettlement scheme provides the possibility for children outside of the EU in need of international protection to be granted it in the EU. The 2015 Commission proposal for a Union Resettlement framework regulation is current under negotiation.

Protection of children in migration

European Commission Communication on the protection of children in migration (April 2017): states that the Commission and the Member States should step up efforts to address unsafe migration and protect children along the migratory routes by: “prioritising actions aimed at strengthening child protection systems along the migratory routes, including in the context of the implementing the Valletta Summit political declaration and Action Plan and the Partnership Framework, as well as in the framework of development cooperation; supporting partner countries in developing strong national child protection systems and civil registration services as well as cross-border cooperation on child protection; supporting projects targeting the protection of unaccompanied children in third countries along migratory routes, in particular to prevent child trafficking or smuggling; actively implementing the EU Guidelines on the Promotion and Protection of the Rights of the Child” (…) The Commission and Member States should support partner countries in developing strong national child protection systems and civil registration services as well as cross-border cooperation on child protection”.
Council Conclusions on the protection of children in migration (June 2017): recalls the objectives of addressing the root causes of migration, the fight against smugglers and traffickers so that migrant children, including unaccompanied minors, do not move irregularly to Europe; underline that the best interests of the child must be a primary consideration in all actions or decisions concerning children and in assessing the appropriateness of all durable solutions depending on the specific situation and needs of children.
EU Guidelines on the Promotion and Protection of the Rights of the Child (March 2017): renew the EU’s commitment to comprehensively promote and protect the indivisibility of the rights of the child in its relations with third countries, including countries of origin or transit. They underline the need to further strengthen their cooperation with international and civil society organisations. In the Guidelines, the EU reaffirms its commitments on promoting the General Measures of Implementation (GMI) of the UNCRC as set out in its General Comment No. 5. Strong references to 2030 Agenda for Sustainable Development, the European Consensus on Development and the New York Declaration for Refugees and Migrants, containing commitments to protect the human rights of all refugees and migrants, regardless of status, have been included in the Guidelines.
UN Global Compact for Migration (GCM) (2018) - Global political agreement proposing a common approach to international migration in all its dimensions. It places the best interest of children as cross-cutting guiding principle and outlines a series of practical measures for improved cooperation on key issues affecting children in migration. These measures include addressing the issues which force people to migrate, improving the identification of children and ensuring they are referred to adequate social services, and strengthening cooperation on child protection across borders. Particularly relevant to the issue, are the actions included under objectives 2, 4, 5, 7, 8, 9,10, 14 and 21
UN Global Compact on Refugees (GCR) (2018): It has four main objectives: easing the pressures on host countries; enhancing refugee self-reliance; expanding access to third-country solutions; and supporting conditions in countries of origin for return in safety and dignity. The GCR aims at strengthening the international response to movements of refugees and protracted refugee situations, building on international law and standards, including the 1951 Refugee Convention and human rights treaties, while better defining responsibility sharing at international level.

EU Funding

In the 2021-2027 period, the Neighbourhood, Development and International Cooperation Instrument (NDICI) is the new mechanism which combines all EU external action programmes into one broad financing tool. It is the only instrument dedicated to the implementation of EU development cooperation policy, which aims at reducing – and in the long-term eradicating – poverty, tackling inequalities, discrimination and realising the 2030 Agenda and its SDGs. It addresses migration through introducing a spending target of 10% of the NDICI to be dedicated to addressing the root causes of irregular migration and forced displacement and to supporting migration management and governance including the protection of refugees and migrants' rights.
The Pact on Migration and Asylum foresees migration as a systematic priority in the programming of the NDICI, with assistance targeted as needed to those countries with a significant migration dimension. There is a danger that funds will be deviated from development cooperation aims.

International Agreements between the EU and non-EU countries

A wide variety of agreements exist between the EU and non-EU countries to address migration, including readmission agreements, visa facilitation agreements, Mobility Partnerships and Partnership Frameworks on migration, and which impact children in migration.

In a nutshell:

The new pact on migration and asylum foresees maintaining and enhancing financial support for third countries hosting refugees and asylum seekers. Maximizing the impact of international partnerships with key countries of origin and transit (i.e., more non-binding agreements such as the EU-Turkey deal, externalized approach to asylum and migration control) which can also affect the children.

There is no coordinated and full strategy for external EU action which would contribute to the protection of all children along the migratory routes outside of Europe, and which mirrors the internal comprehensive approach introduced by the EC Communication on the protection of children in migration on their arrival in Europe.
More EU development aid for third partner countries is increasingly made conditional on their compliance with returns and readmissions, migration management, border control and fighting terrorism in order to meet the EU’s security and migration objectives rather than to support partner countries in achieving their own development priorities and reducing poverty to leave no child behind according to the 2030 Agenda for Sustainable Development.
The EU-Turkey Statement: agreement between Turkey and the EU aimed at stopping the flow of irregular migration via Turkey to Europe. As consequence, a European policy of blocking asylum seekers in the EU hotspots in the Greek islands has been implemented. Currently, around 12,000 people are still forced to live in inadequate reception and identification centers and often exposed to violence, harassment and exploitation, amid high tensions, lack of security and minimal protection.

The EU political dialogues and agreements on migration with third countries do not yet include adequate human rights and child protection safeguards.

EU-UNICEF Child Rights Toolkit: Integrating child rights in development cooperation

9 Recommended Principles to Guide Actions Concerning Children on the Move and Other Children Affected by Migration (2016) Available in English (original version), French, Spanish, Portuguese and Arabic
The Initiative for Child Rights in the Global Compacts (2017) Recommendations for protecting, promoting and implementing the human rights of children on the move in the proposed global compacts, also available in French and Spanish.
Initiative for Child Rights in the Global Compacts (2019) Explore, engage, act! children and young people and the global compact on refugees and for safe, orderly and regular migration
Initiative for Child Rights in the Global Compacts (2020) Implementing the Global Compact on Refugees for Children: Examples of child-focused work
Destination Unknown (2018) Making Life Better for Children on the Move Promising practices for working with and supporting children on the move
Concord and CINI (2018) Partnership or conditionality – Monitoring the Migration Compacts and EU Trust Fund for Africa. Available also in French, Spanish, Italian and Czech
Lumos (2020) Transforming care systems through EU External Action
UNICEF (2020) Call to Action: Ensuring an ambitious external dimension in the EU Strategy on the Rights of the Child
Terres des Hommes Hellas and partners (2019) Open Letter to European leaders challenging the EU-Tukey deal

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[1] The number of international migrants worldwide has continued to grow in recent years, reaching 258 million in 2017, up from 220 million in 2010 and 173 million in 2000. Nearly 15 per cent of migrant flows is made by children (below 18 years) and young migrants (15 to 24 years) (UN DESA 2017 figures). UNHCR estimates that, at the end of 2016, those under 18 years of age constituted roughly 51 per cent of the global refugee population.

[2] https://www.unicef.org/eca/sites/unicef.org.eca/files/2019-02/Refugee%20Migrant%20Crisis%20Europe%2030%20Dec%202018_0.pdf

[3] The Framework includes partnerships (so called Migration Compacts) with Lebanon, Jordan, Niger, Nigeria, Senegal, Mali, Ethiopia, Tunisia and Libya.