ICM Spotlight on the EU: Appropriate Care for Children in Migration in the EU

Image: ©Dani Oshi

 

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Under the non-discrimination provisions of the UN Convention on the Rights of the Child (UN CRC), all children in migration should access support and services on an equal basis with other children. Moreover, children who are separated from their primary caregivers or who travel unaccompanied by a primary caregiver have a right to special protection and assistance.

However, in practice, migrant and refugee children in Europe are often placed in precarious and difficult conditions. These include hotspots, protracted stays in refugee camps, large-scale reception centres or alternative care institutions. They may be left homeless or in living conditions equating to homelessness, becoming easy prey to exploitation, abuse, violence and and mental ill-health. Migrant children also risk being detained, either at the border or in countries of transit and destination. In such situations, they cannot access the reception, care and social services to which they have a right both before and after status determination.

Furthermore, while a caring and protective family is central to a child’s development, as recognised by the UN CRC, many displaced families cannot access the support services that can help them provide a stable and safe environment where their children can develop and fulfil their potential. In addition, bureaucratic obstacles make it difficult for children who have been separated from their families to reunite with their families.

Institutions are not a suitable care option for children, including refugee and migrant children. Institutions fail to meet the needs of children; their structure and size prohibits individualised support, the centres are designed around the needs of the institution rather than the child, while inadequate supervision and overcrowding expose children to risk of harm or abuse and negatively impact their development and well-being. Yet, despite dedicated efforts and significant progress towards deinstitutionalisation across Europe in recent years, institutional care is too often the default response to children in migration, especially unaccompanied and asylum-seeking children and families.

Image: ©Alain Sannen

Image: ©Alain Sannen

Key areas in need of attention from policy makers and practitioners so that migrant and refugee children are able to access their right to care include [1]:

  • Access to appropriate care for all children in migration, regardless of their status;

  • Access to, family and community-based support services;

  • Access to quality family and community-based alternative care for unaccompanied and separated children in the mainstream child protection system and support for young people in their transition to adulthood;

  • Ending immigration detention of all children;

  • Developing guardianship systems for unaccompanied and separated children;

  • Individual and gender- and age-sensitive assessments of the vulnerabilities and needs of children;

  • Access to health services, including mental health services and psychosocial support;

  • Access to education;

  • Training and support of care and other professionals;

  • Establishing, or where relevant strengthening, a firewall between immigration enforcement services and child protection and other services;

  • Ensuring all migrant children and young people are prepared for their transition out of care and into adulthood

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Children are entitled to all the rights enshrined in the United Nations Convention on the Rights of the Child (UNCRC) regardless of their migration status or that of their parents. These include the right to such protection and care as is necessary for the child’s wellbeing, the right to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development, the right to an education, the right to the enjoyment of the highest attainable standard of health. Furthermore, Article 3 UNCRC states: ‘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.’

The UN Guidelines for the Alternative Care of Children are intended to enhance the implementation of the Convention on the Rights of the Child and of relevant provisions of other international instruments regarding the protection and well-being of children who are deprived of parental care or who are at risk of being so. The Guidelines urges States to appoint a guardian as soon as unaccompanied children are identified; to offer the same level of protection and care as national children in the country concerned, to make all reasonable efforts to trace the children’s families and re-establish family ties, when this is in the best interest of the child, as well as to facilitate regular communication between the child and his/her families provided this is in line with the child’s wishes and in his or her best interests. The 2019 UN General Assembly Resolution on the Rights of the Child focused children deprived of parental care urges States to strengthen child welfare and child protection systems and improve care reform efforts, expresses concern regarding the large and growing number of migrant children, particularly those who are unaccompanied or separated from their parents or primary caregivers, calls upon States to provide support to families and to prevent the unnecessary separation of children from their parents, and urges States to provide a range of alternative care options and to protect all children without parental care, among other recommendations

In their Joint General Comments published in November 2017 [2], the Committee on the Rights of the Child and the Committee on the Protection of the Rights of All Migrant Workers stated that States should:

  • Ensure that children in the context of international migration are treated first and foremost as children. States parties to the Conventions have a duty to comply with their obligations to respect, protect and fulfil the rights of children in the context of international migration, regardless of their or their parents’ or legal guardians’ migration status.

  • Integrate the Convention on the Rights of the Child and the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families into migration- related frameworks, policies, practices and/or other measures, reflecting the primacy of the rights of the child in the context of international migration.

  • Conduct a best-interest assessment on a case-by-case basis to decide, if needed, and in accordance with the Guidelines for the Alternative Care of Children, the type of accommodation that would be most appropriate for an unaccompanied or separated child, or children with parents. In that process, family- and community-based care solutions should be prioritized.

  • Forbid by law and in practice any kind of child and family immigration detention. When children are accompanied by their parents, the need to keep the family together is not a valid reason to justify the deprivation of liberty of a child.  In the meantime, all procedures that can lead to detention.

  • Provide, in accordance with the Guidelines for Alternative Care of Children, adequate follow-up, support and transition measures for children as they approach 18 years of age, particularly those leaving a care context. This includes by ensuring access to long-term regular migration status and reasonable opportunities for completing education, access to decent jobs and integrating into the society they live in. The Committees additionally encourage States to take protective and support measures beyond the age of 18 years.

  • Appoint a qualified legal representative for all children, including those with parental care, and a trained guardian for unaccompanied and separated children, as soon as possible on arrival, free of charge.

  • Take all appropriate measures to fully promote and facilitate the participation of children, including providing them with the opportunity to be heard in any administrative or judicial proceeding related to their or their families’ cases, including any decision on care, shelter or migration status.

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While the planned reform of the Common European Asylum System [3] is on hold and it is uncertain whether new legislation will be passed, there is a need for adequate implementation of the current EU legislation in a manner that respects children’s rights and ensures their ability to access care and services.

Policies, strategies and action plans

  • Pact on Migration and Asylum (2020) – Places emphasis on the quick appointment of  representatives for unaccompanied minors accompanied by sufficient resources and, the strengthening of the European Network on Guardianship. The Pact notes that effective alternatives to detention should be provided for children, but includes several provisions that will result in the detention of children. For instance, children in families older than 12 and unaccompanied minors (if there is a security concern) will be subjected to border procedures and their inherent detention. Children should be offered adequate accommodation and assistance, including legal assistance. Finally, they should also have prompt and non-discriminatory access to education, and early access to integration services. 

  • EU Strategy on the Rights of the Child (2021) – The Commission invites Member States to 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 is to prevent and combat social exclusion of children in need, including children in migration, 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.

  • 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.

  • EU Strategy on Combatting Trafficking in Human Beings 2021-2025 (2021) - puts emphasis on protecting, supporting and empowering the victims, especially women and children. 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.

  • European Commission Communication on the protection of children in migration offers a set of principles and recommendations aiming to protect the rights of all children in migration. The Communication includes recommendations for adequate reception conditions. These comprise providing safe and appropriate accommodation, access to support services such as education, healthcare, psychosocial support and leisure, independent representation, and measures that promote migrant and refugee children’s integration. The Communication also calls for Member States to “ensure that a range of alternative care options for unaccompanied children, including foster/family-based care are provided”. It also recommends the training of professionals working with children, including communicating with children in a gender, age, and context-appropriate manner.

Legal frameworks

  • The Reception Conditions Directive (2013/33/EU) deals with the treatment of asylum seekers – including asylum seeking children - by EU Member States from the moment they apply for asylum. In implementing the Directive, Member States should take the best interests of the child into primary consideration, respect the child’s own views, and ensure an adequate standard of living that supports the child’s physical, social, and mental development. The Reception Conditions Directive is currently being revised based on the 2016 Commission proposal.

Image: ©Tdh/Blaise Kormann

Image: ©Tdh/Blaise Kormann

Accommodation. According to the Directive, unaccompanied children seeking asylum shall be placed: with adult relatives; with a foster family; in accommodation centres with special provisions for children; in other accommodation suitable for children. The Directive allows Member States to place unaccompanied children aged 16 or over in accommodation centres for adult applicants, if it is in their best interests. As far as possible, siblings shall be kept together, taking into account the best interests of the child concerned and, in particular, his or her age and degree of maturity. Changes of residence should be limited for unaccompanied children. However, the EU Reception Directive falls short of prohibiting the detention of children. It states that children can be detained as a measure of last resort, if there are no less-coercive measures available and for the shortest period of time. When it comes to unaccompanied children, the Directive states that they can only be detained in exceptional circumstances.

Training. As provided by the Directive, those working with unaccompanied children should be trained professionals.

Family tracing. Member States should start tracing the family of unaccompanied children as soon as possible.

Access to education. The Directive provides for access to education for children no later than three months after an application for asylum and « under similar conditions » as nationals, even though it allows for the possibility of education to be provided in accommodation centres (rather than mainstream schools). It also provides for preparatory classes, including language classes to facilitate access to the education system.

Access to health care. The Directive provides that people with special reception needs, including children, should have access to “necessary medical or other assistance” including appropriate mental health care.

Adequate standard of living. The Reception Conditions Directive requires that children are ensured a standard of living adequate for their physical, mental, spiritual, moral and social development, as well as access to leisure activities, including age-appropriate play and recreational activities and to open-air activities.

Guardianship. Under the Directive, “Member States shall as soon as possible take measures to ensure that a representative represents and assists the unaccompanied minor”. The role of the representative is to help secure the child’s rights.

Access to the labour market. The Directive establishes the time-limit for access to the labour market in no later than nine months from the date when the application for international protection was lodged. While Member States can decide the conditions for granting access to the labour market for the applicants, access to the labour market must remain “effective”.

  • The Dublin Regulation (Regulation (EU) No 604/2013) whose aim is to determine the Member State responsible for processing an application for international protection, has an important impact on the ability of unaccompanied children to unite with family members living in the EU. If the unaccompanied child has a parent, spouse, child or sibling who is legally present in a Member State, that Member State will be responsible for examining the child’s asylum request unless this is not in their best interests. If this is not the case but the unaccompanied child has an adult aunt, uncle or grandparent who is legally present in a Member State and who following an individual examination, it is established that he or she is able to take care of the child, then that Member State is responsible for the asylum application of the child provided this is in his or her best interests. [4] The 2020 Commission proposal for a new Regulation on Asylum and Migration Management is under negotiation and would repeal the Dublin III regulation.

  • The Return Directive (2008/115/EC) lays down standards and procedures for returning irregularly staying third country nationals to their country of origin or a third-country. When issuing return decisions, Member States must consider the best interests of the child, the right to family life, health, and the principle of non-refoulement. With regards to the return of unaccompanied children, the authorities enforcing the return should make sure that the child will be returned to his or her family or legal guardian, or to “adequate reception facilities in the State of return” [5]. The Directive sets the criteria and conditions for the detention of persons pending return. In particular, it states that unaccompanied children and families with children “shall only be detained as a measure of last resort and for the shortest appropriate period of time” [6], and the best interests of the child should be a primary consideration [7]. The Return Directive is currently being revised based on the 2018 European Commission proposal.

  • The Family Reunification Directive (2003/86/EC) covers conditions under which family reunification is granted to regularly residing third country nationals.

  • The Qualification Directive (2011/95/EU) establishes the rights which flow from international protection status, including full access to the education system to all children granted international protection, under the same conditions as nationals and access to healthcare to all beneficiaries of international protection under the same eligibility conditions as nationals of the Member State that has granted such protection. The Qualification Directive is currently being revised based on the 2016 European Commission proposal.

  • The EU Directive on long-term residents (2003/109/EC) covers status and rights of third country nationals who have resided regularly and continuously for five years, who meet certain criteria. 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.

  • The Anti-trafficking Directive (2011/36/EU) includes provisions on victims’ protection, assistance and support, but also on prevention and prosecution of the crime.

Jurisprudence

Please consult the general measures page here.

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In a nutshell:

  • The revision of the EU international protection instruments (e.g. Asylum Procedures Directive, Qualification Directive, Reception Conditions Directive) has proved protracted and contentious. Key issues concerning care for children under revision include guardianship, accommodation and detention, family tracing, the possibility to reunite with family members within the EU, access to education and health care and access to the labour market.  Some positive changes in the proposed recast Qualification Directive include the appointment of a guardian within 5 working days, the broadening of the scope of the definition of family members with whom unaccompanied children can reunite within the EU. However, punitive measures, such as the withdrawal of reception conditions for people moving to a country other than the one that is responsible for examining their asylum application risks violating children’s rights and driving increasing numbers underground.

  • In the current framework, many challenges remain in practice, including the placement of unaccompanied and separated children in precarious conditions where they lack individual care such as hotspots, refugee camps and large scale reception centres; the detention of children for migration-management purposes; the lack of support for families to provide a stable and safe environment for their children; shortcomings in the guardianship systems preventing guardians from carrying out their responsibility to ensure that the rights of unaccompanied children are protected; major obstacles for children to reunite with their families; lack of access to health services, including mental health services, education and psychosocial support for children and their families; lack of training and support of care professionals; and insufficient support for young people in their transition to adulthood.

  • The new Pact on Migration and Asylum foresees swift appointment of guardians and strengthening their role as well as enhanced support for the European Network on Guardianship. Family tracing and reunification should be facilitated by enlarging the definition of family members to include siblings and families formed in transit countries.

  • Building on the ‘hotspot approach’ (where EASO, Frontex and Europol work since 2015 with frontline professionals from Member States to swiftly identify, register and fingerprint migrants arriving), the new Pact on Migration and Asylum also foresees a new Migration Preparedness and Crisis Blueprint to provide for temporary and extraordinary measures needed in the face of crisis. Among others it ensure that the system of solidarity proposed in the new Asylum and Migration Management Regulation (under negotiation) is well adapted to a crisis characterised by a large number of arrivals. It would also widen the scope of compulsory relocation, for example to applicants for and beneficiaries of immediate protection, and return sponsorship.

  • Although governments acknowledge third country nationals and other migrants often need additional support to ensure equal access to opportunities and services, including care, EU policies, such as the Action Plan on the integration of third country nationals, often explicitly exclude undocumented children and adults from their scope.  

  • See also, Initiative for Children in Migration, Durable Solutions.

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On the Migration and Asylum Pact

General

Guardianship

Detention

Undocumented children

Image: ©Dani Oshi

Image: ©Dani Oshi

Online course, webinars and videos

  • A Massive Open Online Course (MOOC) on Children on the Move has been  developed by Celcis, University of Strathclyde with technical advice from FXB Harvard and an inter-agency taskforce bringing together the Better Care Network, FICE, International Federation of Social Workers, Hope and Homes for Children, Global Partnership to End Violence Against Children, International Committee of the Red Cross, International Detention Coalition, the International Federation of the Red Cross and Red Crescent, IOM, International Social Service, Latin American Foster Care Network, Save the Children, SOS Children’s Villages International, Terre des hommes, UNHCR and UNICEF.

  • Common European Asylum System and the European Parliament elections (webinar), discussed the CEAS reform, the key child protection challenges and advocacy opportunities, April 2019.

links:

[1] Adapted from SOS Children’s Villages International, Eurochild, (2017), Let Children be Children, Lessons from the Field on the Protection and Integration of Refugee and Migrant Children in Europe. Available at https://www.sos-childrensvillages.org/getmedia/32eeb951-d731-48ae-86fb-96b9aff63f3e/Let-Children-be-Children_Case-studies-refugee-programmes.pdf and expanded.

[2] 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

[3] Including the recast of the Dublin Regulation and of the Eurodac Regulation, a proposal for a Regulation on the establishment of the European Union Agency for Asylum , a proposal for a Regulation establishing a Common Procedure for International Protection in the EU, a proposal for a Qualification Regulation, the recast of the Reception Conditions Directive and a proposal for a Regulation establishing a Union Resettlement Framework.

[4] See “Unaccompanied Children and the Dublin III Regulation”, European Network of Guardianship Institutions, 2016 https://engi.eu/wp-content/uploads/2016/11/Unaccompanied-Children-and-the-Dublin-III-Regulation.pdf

[5] Directive 2008/115/EC of the European Parliament and of the Council on Common Standards and Procedures in Member States for Returning Illegally Staying Third-country Nationals, European Union, O.J. L 348/98, 16 December 2008, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:348:0098:0107:en:PDF. Art. 10

[6] Ibid., art. 17

[7] See also ECRE, ECRE Information Note on the Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, 7 January 2009, CO7/1/2009/Ext/ MDM,  http://www.refworld.org/docid/496c61e42.html