General Measures to Implement a Comprehensive Approach to Children in Migration

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Migrant children often experience significant difficulties to access the rights that should be fulfilled for them as children. Their rights and needs are often under-addressed – or explicitly excluded – from general public social policies, such as those on health, education and child protection. Much of immigration and asylum law and policy at EU and national level makes little reference to children, despite them making up a significant proportion of people affected by those same policies. This ‘invisibility’ in law and policy can be perpetuated by a lack of disaggregated data on children in migration, particularly when accompanied by their parents or caregivers. EU migration policies, and immigration and asylum procedures and practices at national level are often ill-adapted to children’s rights and needs.

Although children may be subject to different residence status determination rules (for example, international protection, trafficking, family reunification, other human rights grounds (best interests, integration, principle of non-refoulement) etc.) and have individual needs that should be met, they all have equal rights as children. However, many children fall through the gaps in the existing system, and children are usually treated very differently according to their status, in violation of their rights, particularly when they are undocumented.

Resolving these issues means adopting a comprehensive approach to all children in migration. It implies that States must take a number of measures at each stage of designing, planning, resourcing, implementing, monitoring and evaluating laws, policies, actions and programmes (“general measures of implementation”).

Image: ©Dani Oshi

Image: ©Dani Oshi

Key measures include:

  • Domestic legislation protecting children’s rights that can be relied upon in court

  • A comprehensive national strategy or plan of action for advancing children’s rights

  • Official guidelines and policy documents on implementation practically address the rights and needs of children

  • Mechanisms to coordinate between different levels of government and government bodies or agencies responsible for children, including across borders

  • Child impact assessments and evaluations with child rights indicators

  • Data collection

  • Adequate and targeted funding

  • Training and capacity building of professionals working with children

  • Structures for cooperation with civil society and participation of children in policy making, monitoring and evaluation

  • Independent monitoring and complaints mechanisms (e.g. children’s ombudspersons)

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CRC rights are organised by the UN Child Rights Clusters used for country reporting to the Committee on the Rights of the Child (periodic review). These clusters are used by national governments when reporting to the UN Committee on the Rights of the Child and are a useful point of reference. The following clusters are in particular focus:  General measures of implementation (arts. 4,42 and 44, para. 6, of the Convention).

 More particularly, Article 4 of the CRC requires governments to “undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention”. With regard to economic, social and cultural rights, “States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation.”

General Comment No. 5 on General measures of implementation explores the issue of how to concretely implement the CRC, and in particular Article 4, in law, policy and practice.

Other General Comments of the UN Committee on the Rights of the Child of particular relevance include:

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 12 (2009): The right of the child to be heard

General Comment No 13 (2011): The rights of the child to freedom from all forms of violence

General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1)

General comment No. 19 (2016) on public budgeting for the realization of children’s rights (art. 4)

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

Image: ©Dani Oshi

Image: ©Dani Oshi

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Legal framework:

All EU member states have ratified the CRC, and compatibility with children’s rights is required of all European Union legislation, in particular due to the following:

▪ Treaty on the European Union - the Union “shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child (Article 3).

▪ EU Charter on Fundamental Rights specifically reiterates the rights of the child, that 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 (Article 24).

Policies, strategies and action plans:

For a comprehensive overview read the EU and international frameworks and EU acquis and policy documents on the rights of the child (as of March 2021).

On children’s rights in general

  •  EU Strategy on the Rights of the Child (2021-2025) - outlines proposals, actions and initiatives to further the rights of children across six thematic areas within the EU and globally for the years to come. Actions and recommendations targeting particularly vulnerable children, including children in migration, are integrated across the pillars. In particular the Commission invites Member States to promote and ensure universal, free and immediate access to birth registration and certification for all children and increase capacity of front-line officials to respond to statelessness and nationality-related problems in the context of migration, promote national strategies and programmes to speed up de-institutionalisation and the transition towards quality family- and community-based care and services, with an adequate focus on preparing children to leave care, including for unaccompanied migrant children. The Commission commits to support Member States in the development of effective and viable alternatives to the detention of children in migration procedures.

  • Council Recommendation establishing a European Child Guarantee (2021) - the aim of the recommendation to Member States is to prevent and combat social exclusion of children in need (including children in migration irrespective of status) by guaranteeing access to a set of key services, thereby also helping to uphold the rights of the child by combating child poverty and fostering equal opportunities.

Image: ©Tdh/Francois Struzik

Image: ©Tdh/Francois Struzik

Specifically related to children in migration:

▪ European Commission Communication on the protection of children in migration (2017) - identifies a number of challenges for the protection of children in migration and sets out actions to be taken by the European Commission, member states and EU agencies. The progress on the implementation of the actions in the Communication by the Commission and EU Agencies as well as by Member States is monitored (see advocacy resources).

▪ European Commission Action plan on Integration and Inclusion 2021-2027 and accompanying staff working document (2020) - promotes inclusion for all, recognising the important contribution of migrants to the EU and addressing the barriers that can hinder their participation and inclusion in European society. Key actions include inclusive education and training, improving employment opportunities and skills recognition, promoting access to health services and access to adequate and affordable housing. It also highlights the need for additional protective support for children, always ensuring the best interest of the child, not least when they are unaccompanied.

▪ Pact on Migration and Asylum (2020) - sets out a “comprehensive approach, bringing together policy in the areas of migration, asylum, integration and border management”. It was accompanied by a set of 4 Communications and a Roadmap to implement the New Pact: 1. Proposal for a Regulation introducing a screening of third country nationals at the external borders, 2. Amended Proposal for a Regulation establishing a common procedure for international protection in the Union, 3. Proposal for a Regulation on asylum and migration management, 4. Amended Proposal for a Regulation on the establishment of ‘Eurodac’, 5. Proposal for a Regulation addressing situations of crisis and force majeure in the field of migration and asylum. The Pact builds on previous proposals to reform the Common European Asylum System and interoperability between migration-related databases, which remain under negotiation at different stages in the legislative process. These include the Qualification Regulation, Recast Reception Conditions Directive, Proposal for a European Union Agency for Asylum, Proposal for a Union Resettlement and Humanitarian Admission Framework Regulation, and the Recast Return Directive. For more details, check out the relevant spotlight on the EU pages. In the pact, the Commission has identified the needs of children as a priority

▪ Council Conclusions on the protection of children in migration (2017) - encourages member states to take or implement actions, as appropriate, to protect children at all stages of migration, building on the Commission Communication on the protection of children in migration, and report on implementation of these actions, among other things.

▪ European Parliament resolution of 3 May 2018 on the protection of children in migration sets out a number of recommendations, including related to non-discrimination, funding, and the use of infringement proceedings against member states violating children’s rights through immigration detention.

▪ The Global Compact on Migration (2018), which the EU, EU Member States and UN member states states negotiated, has child rights and best interests as a cross-cutting and guiding principle, and includes the action:
“Account for migrant children in national child protection systems by establishing robust procedures for the protection of migrant children in relevant legislative, administrative and judicial proceedings and decisions, as well as in all migration policies and programmes that impact children, including consular protection policies and services, as well as cross-border cooperation frameworks, in order to ensure the best interests of the child are appropriately integrated, consistently interpreted and applied in coordination and cooperation with child protection authorities …” (para 23e)

Funding:

▪ Various EU funding instruments can be used by governments to advance the rights of children in migration. In January 2021, the new 2021-2027 Multiannual Financial Framework (MFF) started. A number of EU funds will play an important role in supporting children in migration, including, in particular, the European Social Fund Plus, the European Regional Development Fund (ERDF), the Fund for European Aid to the most Deprived (FEAD) and the Asylum, Migration and Integration Fund (AMIF).

▪ In addition to the MFF, an unprecedented economic stimulus was set up through the Next Generation EU to support EU member states recover from the Covid-19 pandemic. As these resources are managed at the member states’ level and represent a unique support to finance reforms and economic recovery, it is difficult to determine to what extent migrants will directly benefit from them.

▪ In June 2021, the Council launched the European Child Guarantee, to be funded by several EU funds, including ESF+. The Child Guarantee hopes to break intergenerational cycles of exclusion and poverty and is intimately connected to the European Commission’s aim to reduce the number of children at risk of poverty or social exclusion by 5 million by 2030. Crucially, all children in need should benefit from the Child Guarantee-funded activities, including ‘children with a migrant background’ irrespective of their residence status.

▪ Ahead of the 2016 EU Forum on the rights of the child, which was dedicated to children in migration, the European Commission prepared a background document (revised on 5 of February 2018) with an overview of the different EU funds and their scope, with examples of recent EU contributions.  Although these funds have changed, the document provides a useful illustration of projects to date.

▪ The European Commission Toolkit on the use of EU funds for the Integration of People with a Migrant Background (2018) supports national and regional funding authorities in reinforcing synergies between EU funds under shared management when implementing integration policies. It includes scenarios on education, housing, reception and access to basic mainstream services.

Data collection:

▪ Regulation on EU statistics on migration and international protection (2020) – sets out EU rules for the collection and compilation of statistics on migration (emigration and immigration), international protection (asylum), regular and irregular migration and returns by EU and EFTA countries (to be communicated to Eurostat). Some of the data is disaggregated by age.

Independent monitoring and complaints mechanisms:

  • The European Commission monitors transposition and implementation of EU laws. There is a database on measures taken by member states to incorporate EU law into national law (transposition), and annual report reviewing main challenges in implementation of EU law and infringement proceedings launched. There are also reports related to the transposition and implementation of specific directives undertaken by the relevant department in the Commission. Individuals can also submit complaints directly to the European Commission for breaches of EU law.

  • The European Parliament (Petitions Committee) accepts petitions or complaints from any EU citizen or resident on matters which fall with the EU’s activities.

  • EU citizens and residents can also ask the European Ombudsman to look into cases of maladministration in the activities of EU institutions, bodies, offices or agencies.

  • The European Border and Coast Guard Regulation (Regulation (EU) 2019/1896) set up a complaints mechanism (see article 11).

In all cases there is a lack of child-friendly information and complaints procedures.

Jurisprudence

Important international and European jurisprudence has been handed down on grounds that can establish a right of residence in a country based on human (and child) rights, and international protection. Often this is in relation to appeals against return decisions or removal orders.  Jurisprudence can be very helpful to support advocacy.  Consult the websites of:

▪ the Court of Justice of the European Union  

▪ the European Court of Human Rights

▪ the UN Committee on the Rights of the Child Optional Protocol No 3 Complaint Procedure

▪ http://www.europeanmigrationlaw.eu/

▪ Asylum Information Database (AIDA)

▪ PICUM’s Case Law Tool.

▪ ENS’s Statelessness Case Law Database

Image: ©Elisabeth Vanhoutte

Image: ©Elisabeth Vanhoutte

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Updated as of August 2021

In a nutshell:

Member States are currently setting the priorities for the EU funds in the 2021-2027 period. The most relevant funds for children in migration include the Asylum, Migration and Integration Fund, European Social Fund Plus and the European Regional Development Fund. Negotiations are expected to be finalised by the end of 2021. Member states will have to present their national action plans for the European Child Guarantee by March 2022.

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Updated as of August 2021