ICM Spotlight on the EU: Procedural Safeguards

Image: ©Dani Oshi

 

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Children in migration may be involved in diverse administrative or judicial procedures in the EU, at the border, on the territory and when transferred to another country is being addressed.   These procedures should be adapted to the needs and rights of children.

This typically involves the following elements:

  • Ensuring the best interests are a primary consideration in all decisions affecting them

  • Appropriate identification procedures (identification as unaccompanied or separated; registration; age assessment if necessary; identification of (risk of) statelessness)

  • Provision of child friendly information

  • Guardianship for unaccompanied and separated children

  • Interpreters and cultural mediators

  • Legal assistance and representation

  • Access to procedures (ability to make an application in their own name)

  • Participation of children, including opportunities to be heard in interviews

  • Individual needs assessment, including but not limited to risk assessments, and best interests assessments Restoring family contacts

  • Involvement of child specific expertise and information in proceedings

  • Involvement of qualified and trained personnel

  • Multidisciplinary approaches to child centred case management

  • Status determination procedures which are informed by Best Interests Determinations

  • Access to birth registration and the right to a nationality, regardless of the status of the parents

  • Exclusion from certain procedures, such as border procedures

  • Effective remedies, including appeal rights with suspensive effect and child-friendly complaints mechanisms

  • Prohibition of detention

  • Cross border cooperation on information and transfers

  • Data protection

However, procedures which apply to migrant children frequently are not adapted to the needs or do not respect their rights fully.

In particular, migrant children accompanied by parents are too often treated largely as appendages of the parents. They may depend on the procedures and decisions concerning adult family members, with limited examination of their individual circumstances and limited consideration of any independent claims of the children.   

Further, although typically there are legislative provisions which explicitly concern unaccompanied children, many of these are set out in general terms without proper implementation processes.  Equally, they may establish one or another important safeguard but rarely establish all the necessary procedural safeguards (e.g. there may be a guardianship provision but inadequate provision of legal representation and assistance, or vice versa). They frequently fail to address children’s needs and rights in a comprehensive way (e.g. a child may have access to asylum procedures, but no access to a process to identify a durable solution where there is no claim – or a rejected claim - to international protection).

More generally, effective procedural safeguards depend on inter-agency cooperation and multidisciplinary approaches.  Although there is increased recognition that this is the case, in practice, effective inter-agency work in this field remains challenging and limited in many important contexts.

Image: ©Dani Oshi

Image: ©Dani Oshi

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Many safeguards are necessary to ensure children can access and enjoy their rights under the CRC, including safeguards to ensure they are identified and treated as a child, have their best interests taken as a primary consideration in all actions and ensuring they are heard or can make their voice heard.

In relation to procedural safeguards, the following UN Child Rights Clusters used for country reporting to the Committee on the Rights of the Child (periodic review) are a useful point of reference: definition of the child, the general principles, violence against children, civil rights and freedoms, family environment and alternative care and special protection measures. 

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

Image: ©Dani Oshi

Image: ©Dani Oshi

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Any EU law and policy regulating procedures that address a child’s status and treatment (e.g. in terms of access to procedures, protection and services, etc.) is relevant.

Legal provisions may apply to all persons regardless of their age, parents of children and/or specifically deal with children, including provisions which focus on safeguards for unaccompanied children.   

Procedures and practice, including of EU agencies such as Frontex and EASO, are also important as they both impact children directly and inspire procedures and practices of other, national, institutions. These should equally respect child rights.

General policies, strategies and action plans

  • Pact on Migration and Asylum (2020) – The European Commission highlights that “the reform of EU rules on asylum and return is an opportunity to strengthen safeguards and protection standards under EU law for migrant children” (chapter 2.4). 

  • EU Strategy on the Rights of the Child (2021) – The European Commission recalls that “the Pact on Migration and Asylum underlined the need to both implement and reinforce EU law safeguards and protection standards for migrant children.” The Commission also ”invites Member States to raise awareness of, and invest in capacity building and measures for (i) a more effective prevention of violence, (ii) protection of victims and witnesses, including with the necessary safeguards for child suspects or accused.”

  • European Commission Communication on the protection of children in migration (2017) - “Appropriate safeguards must be applied to all children present on the territory of the European Union, including at all stages of the asylum and return procedure. Currently, a number of key protection measures, notably as regards access to information, legal representation and guardianship, the right to be heard, the right to an effective remedy and multidisciplinary and rights-compliant age assessments, needs to be stepped up” (page 9)

Image: ©Dani Oshi

Image: ©Dani Oshi

Border procedures

  • Schengen Border Code (Regulation (EU) No 610/2013)
    For example, people – including families with children - refused entry at a border because they do not fulfil all the conditions, should be provided a substantiated written decision stating the precise reasons for the refusal, and have the right to appeal (without suspensive effect) (Article 14). See also Article 6 on special attention to be paid to both accompanied and unaccompanied children during border checks to ensure they do not leave the territory against the wishes of parents/ legal guardians. In its 2021 Work Program, the European Commission announced a revision of the Schengen Borders Code, which was scheduled for the second quarter of 2021.

  • European Border and Coast Guard (EBCG) (Regulation 2019/1896): For example, the Agency shall make forced-return monitors available upon request to participating Member States to monitor, on their behalf, the correct implementation of the return operation and return interventions throughout their duration. It shall make available forced-return monitors with specific expertise in child protection for any return operation involving children”. (article 51(4)) Likewise, the Agency shall also contribute fundamental rights monitors to the forced return pool. Forced-return monitors with specific expertise in child protection shall be included in the pool (article 51(2).

  • Schengen Information System: There are no specific provisions for children. General provisions apply, like the right of information (art. 42), the right of access, correction of inaccurate data and deletion of unlawfully stored data or the right to a remedy (art. 43).

  • Eurodac Regulation states in art. 29 that the collection, transmission and comparison of fingerprint data shall be done in an age-appropriate manner where the person concerned is a child. EURODAC Regulation is currently being renegotiated based on the 2020 Commission proposals. 

  • Frontex VEGA Handbook: children at airports (2015) - operational guidelines for border guards to assist trafficked children or children at risk of trafficking at air borders. The handbook covers entry, transit and exit controls in cases of irregular migration and cross-border crime involving children at airports.

  • Strategy towards a fully functioning and resilient Schengen area (2021) - it builds on three key elements: ensuring effective and modern management of the EU's external borders; reinforcing the Schengen area internally; and (3) improving governance to foster trust between Member States as well as better crisis preparedness.

  • Informal Commission expert group “European Contact group on search and rescue”.

Children of regularly residing migrants including beneficiaries of international protection:

  • EU Directive on long-term residents (2003/109/EC) - covers status and rights of non-EU migrants who have resided regularly and continuously for 5 years, who meet certain criteria.  Procedural safeguards also relevant to include the right to a reasoned decision and right to appeal (see art. 10) and protection against expulsion (art. 12). The Commission announced in the Pact on Migration and Asylum the amendment of the Long-Term Residents directive so that beneficiaries of international protection would have an incentive to remain in the Member State which granted international protection, with the prospect of long-term resident status after three years of legal and continuous residence in that Member State.

  • Family Reunification Directive (2003/86/EC) – covers conditions under which family reunification is granted to regularly residing non-EU migrants, establishes procedural guarantees and provides rights for the family members, including an obligation for Member States to have due regard to the best interests of the child when examining applications (art. 5.5) and  the right of reunified children to obtain an autonomous resident permit from their sponsor once having reached age of majority (art.15).

  • EU ‘Blue Card’ Directive, EU Directive on researchers, students, etc. and the EU Intra-Corporate Transferees Directive address aspects of the situation of family members of workers admitted for highly qualified employment (Blue Card holders), researchers and intra-corporate transferees respectively, and include similar procedural safeguards that include, e.g. that the permits of family members (including children) shall be granted where conditions are met, within 90 days for researchers and intra-corporate transferees, and no later than 6 months for Blue Card holders, after the application was lodged, and that as a rule their residence permits should have the same duration as the primary permit holder. In May 2021, the European Parliament and the Council reached an agreement on the Commission’s proposal for a revised Blue Card Directive. The European Parliament and the Council will still need to confirm formally the political agreement by adopting the EU Blue Card Directive. Once the Directive is formally adopted, Member States will have 2 years to transpose the rules into national law.

  • EU Single Permit Directive sets down a single application procedure including procedural guarantees, such as written notification and the right to appeal, for applicants for permits allowing work, including family members not admitted for work, but does not include provisions related to the residence of dependent children.

Children seeking or granted international protection:

  • Asylum Procedures Directive includes safeguards for unaccompanied children, such as the right to be represented and assisted by a qualified professional who performs his/her duties in the best interests of the child and whose interests do not conflict with the ones of the unaccompanied child (art.25.1) or the right to receive free legal and procedural information (art. 25.4). In 2016, the Commission proposed to replace the Asylum Procedures Directive with a regulation establishing a fully harmonized common EU procedure for international protection to reduce differences in recognition rates from one Member State to the next, discourage secondary movements and ensure common effective procedural guarantees for asylum seekers. An amended proposal was presented in 2020, as part of the Migration and Asylum Pact. It includes few safeguards and proposes to detain children in families for up to 20 weeks as part of the asylum and return border procedures.

  • Dublin III Regulation includes safeguards such as “Member States shall ensure that a representative represents and/or assists an unaccompanied minor with respect to all procedures provided for in this Regulation. The representative shall have the qualifications and expertise to ensure that the best interests of the minor are taken into consideration during the procedures carried out under this Regulation.” (art. 6.2). Member States shall closely cooperate to determine the best interests of the child, taking into account family reunification possibilities, the minor’s well-being and social development, safety and security considerations (in particular, risk of human trafficking) and the views of the child, according to her/his age and maturity (art. 6.3). Assistance of international and regional organisations may be sought and the child’s access to the tracing services of such organisations should be facilitated (art.6.4). The 2020 Commission proposal for a new Regulation on Asylum and Migration Management is under negotiation and would repeal the Dublin III regulation

  • 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 currently under negotiation.

Trafficked children:

  • EU Trafficking Directive (Directive 2011/95/EU) - affects children who have been trafficked – see in particular Articles 13-16 on assistance and support to child victims, protection of child victims of trafficking in human beings in criminal investigations and proceedings and assistance, support and protection for unaccompanied child victims of trafficking in human beings.

  •  European Union Agency for Fundamental Rights (2019) Children deprived of parental care found in an EU Member State other than their own

  • EU Strategy on Combatting Trafficking in Human Beings 2021-2025 (2021) - puts emphasis on Protecting, supporting and empowering the victims, especially women and children. The Commission commits to support member states with early victim identification and providing assistance and recommends systematic reporting and alerts on missing children for an early identification, referral procedures tailored to child victims, speedy appointment of guardians and effective free legal aid. It also promotes gender-sensitive and child-rights based training for professionals likely to come into contact with victims.

Image: ©Dani Oshi

Image: ©Dani Oshi

Children who may be subject to return proceedings:

  • EU Return Directive (2008/115/EC) – procedures and rights of children identified by immigration authorities as irregularly residing - see in particular Article 5 requiring member states to take due account of the best interests of the child, family life and health status, Article 10  requiring the assistance to unaccompanied minors by appropriate bodies other than the authorities enforcing return and a best interests determination procedure before removal to make sure appropriate custodial arrangements are in place in the country of return; Article 17 limiting the capacity of States to detain children (should be “a measure of last resort and for the shortest appropriate period of time” and “the best interests of the child shall be a primary consideration in the context of detention”). Moreover children, as the rest of TCNs subject to return, must be afforded an effective remedy to appeal against a return decision before a competent judicial or administrative authority (Art. 13.1).

The Return Directive is currently being revised based on the 2018 European Commission proposal.

  • EU strategy on voluntary return and reintegration (2021) – Notes that “for children, the specific conditions in the country of return need to be considered on a case-by-case basis, taking into account the individual circumstances and the family situation. This would ensure that migrants receive the assistance they need upon arrival and make their return sustainable. The needs of unaccompanied minors and children in migration are key political priorities for the EU asylum and migration management system. Providing quality support to children in the context of voluntary returns and reintegration, and taking account of the best interests of the child as a primary consideration, is crucial for allowing them to build a future in the country of origin”.

  • Schengen information System for return Regulation (2018) - lays down the conditions and procedures for the entry and processing of alerts in respect of third-country nationals subject to return decisions issued by the Member States in the Schengen Information System (SIS) established by Regulation (EU) 2018/1861, as well as for exchanging supplementary information on such alerts

  • EU Return Handbook, revised 27 September 2017 (EC Communication) - the Handbook is intended to guide implementation of the Return Directive, and was revised to reflect the EC Recommendation on making returns more effective of 7 March 2017. The Handbook states: “Return is one of the options to be examined when identifying a durable solution for unaccompanied minors and any Member State's action must take into account as key consideration the best interests of the child. Before deciding to return an unaccompanied minor, and in accordance with Article 12(2) of the Convention on the Rights of the Child, the minor s concerned must be heard, either directly or through a representative or an appropriate body, and an assessment of the best interests of the child shall always be carried out on an individual basis, including on the particular needs, on the current situation in the family and on the situation and reception conditions in the country of return. Such assessment should systematically look at whether return to the country of origin, including reunification with the family, is in the minor's best interests. The assessment should be carried out by the competent authorities on the basis of a multidisciplinary approach, involving the minor's appointed guardian and/or the competent child protection authority….”

Stateless Children/Children at risk of statelessness

  • Council Conclusion on Statelessness (2015) - Recalling that the right to acquire a nationality has been reiterated in a number of instruments of international human rights law such as the International Covenant on Civil and Political Rights, the Convention on the Elimination of Discrimination against Women and the Convention on the Rights of the Child.

Other relevant international standards

  • European Convention on Nationality – provides principles and rules applying to all aspects of nationality and is designed to ensure that acquiring a nationality is easier, nationality can not be arbitrarily withdrawn, procedures governing nationality applications are just and fair. See in particular Article 6 on the acquisition of nationality, which states that national law should enable nationality to be acquired by children who would otherwise be stateless at birth, and children who have remained statelessness on the territory.

  • 1961 Convention on the Reduction of Statelessness – the leading international instrument that sets out rules to prevent cases of statelessness from arising

Image: ©Dani Oshi

Image: ©Dani Oshi

Jurisprudence

Please consult the general measures page here.

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 Updated as of November 2021

In a nutshell:

  • Some proposed procedures in the Pact on Migration and Asylum require significant amendments to provide sufficient procedural safeguards for children. For an overview of the main issues, see the joint statement on the impact of the new Pact on Migration and Asylum on children in migration.

  • The ongoing revision of the EU international protection instruments (e.g. Asylum Procedures Directive, Qualification Directive, Reception Conditions Directive) are proving protracted and contentious. Key procedural issues under the spotlight include: guardianship, age assessment and access to legal assistance.

  • The proposal for a screening regulation (2020) introduces screening of third country nationals at the external borders. Main concerns relate to the way in which this procedure will be able to assess vulnerability, access to child friendly information and child protection, lack of guidance when age is uncertain, fear of the long term impact of detention on children, even if for a short time, and more. Negotiations are ongoing.

  • The proposal to revise the Return Directive restricts key procedural rights, including regarding access to, and suspensive effect, of appeals, which will impact children in families.

  • The European network for Guardianship has been established.

  • The negotiations on the proposed Eurodac recast regulation are progressing. Civil society organizations and UN Agencies expressed grave concerns on the amendment proposing to lower the fingerprinting age from 14 to 6 years old. The European Parliament’s position on the proposal states that member states shall not use coercion against children to obtain their fingerprints or facial image. It also includes child-specific provisions including around age-appropriate information for children, training of officials and referral to competent national child protection authorities (Amendment 44).

  • In the pact of Migration, the European Commission announced that it will present in Q3 2020 a guidance to Member States to make clear that rescues at sea cannot be criminalized.

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Updated as of November 2021

General

Border procedures

Children seeking or granted international protection:

Trafficked children

Unaccompanied Children

Image: ©Dani Oshi

Image: ©Dani Oshi

Children who may be subject to return proceedings:

  • ECRE (2018) Comments on the Commission Proposal for a Recast Return Directive COM (2018) 634.

  • The Commission proposal for a “recast” of the Return Directive specifically reduces key procedural rights and safeguards against children being issued a return decision, detained, and subject to removal. For example, the proposed broadening of the definition of the “risk of absconding” (Art. 6) will result in more people, including parents, being detained, considered ineligible for voluntary departure, and issued entry bans. The immediate and automatic issuance of a return decision together with a rejection or termination of regular residence (Art. 8) will result in more children being issued orders to leave the territory and at risk of removal, even if this would violate their rights. Restrictions on appeals and their suspensive effect (Art. 14) directly limit access to effective remedy and the right to be heard. The new border procedures (Art. 22) have simplified procedures and extremely limited appeal possibilities.

  • UNICEF, OHCHR, IOM, ECRE, PICUM, Save the Children, Child Circle (2019) Guidance to respect children’s rights in return policies and practices. Focus on the EU legal framework, 

  • European Migration Network (2020) Ad Hoc Query 2020 Detention of Minors 

  • PICUM (2020) More detention fewer safeguards: How the new EU Pact on Migration and Asylum creates new loopholes to ignore human rights obligations 

Stateless Children/Children at risk of statelessness

Other

  • Council of Europe (2011) Guidelines on Child Friendly Justice – these guidelines from the Council of Europe (and not the European Union) explain procedural safeguards which are vital to ensure child-sensitive proceedings. They provide valuable support to advocacy recommendations. They also may support organisations in considering what safeguards are generally in place for children in justice and advocating that equivalent procedures be in place for children in migration (e.g. involvement of lawyers trained in child rights).

  • Council of Europe (2019) child friendly information handbook for frontline professionals: guidance on how to convey child friendly information to children in migration.