Solidarity and Cooperation between EU Member States

Image: ©Dani Oshi

 

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Children in migration may be engaged in procedures in the EU which will involve cross-border cooperation between national authorities. Effective cross-border cooperation for the protection of children in migration depends on an inter-agency and multidisciplinary approach involving different actors. However, while the European Institutions are in a unique position to create better cross border cooperation, currently the legal and policy framework is fairly general and incomplete, practice is underdeveloped and the support for such cooperation needs to be improved.

The need for cross border cooperation may arise, for example, when a child applies for international protection and a transfer to another country is being considered (for example, on the basis of the Dublin III Regulation or in the context of a relocation scheme). It may also occur in cases of family reunification or when restoring family links. Effective cross-border cooperation between different institutional actors of the countries involved in the case (such as the authority responsible for the Dublin procedure, the reception authority, child protection authorities, others) are essential to ensure these procedures are properly applied.

Cross-border cooperation is also crucial to ensure the protection and the implementation of an individual care plan is continued across borders. For example, guardians or professionals in charge of the medical or psychosocial monitoring should be able to communicate with their counterparts on the situation and the needs of the child, in light of an efficient implementation of the child’s best interest. Equally legal assistance providers may need to be in contact across borders in order to ensure continuity and stability of assistance and representation in cases where a child may be transferred from one EU country to another, or where they may need to liaise ahead of any transfer decision(for example, as regards family reunion assessments undertaken by on Member State, where the child is located in another State).

Image: ©Dani Oshi

Image: ©Dani Oshi

Effective cross border cooperation is also important to avoid exposing children to risks. A study carried out by the SUMMIT project in 2015 [1] and earlier by Terre des Hommes in 2009 [2] found that one of the reasons for unaccompanied children to go missing is the lengthy and burdensome procedure for being transferred to another country, especially in cases where the child is trying to reunite with family members. In some of these cases, children give up on the process or on the trust in the system and prefer to travel by their own means. Children moving alone across borders are inevitably exposed to several risks, including homelessness, high level of stress and anxiety, smuggling, exploitation and trafficking. And when a child does go missing from care and is suspected to be in another country, cross-border cooperation should occur to ensure a proper follow up.

Although its crucial importance is increasingly recognised, in practice cross-border cooperation to respond to disappearances of children appears to be the exception rather than the rule.  When cross-border cooperation is triggered, it is based on personal connections, rather than on formal, clear and standard procedures [3].   Cooperation is often jeopardised by a lack of clarity on the roles of agencies in differing countries and on the procedures to follow [4]. Inefficient national information sharing between agencies (arising, inter alia, out of a lack of adequate system for information sharing providing a clear firewall between protection and migration enforcement; a lack of trust and GDPR concerns when exchanging sensible information on a child’s case) and difficulties in unambiguous identification of the child also impede efficient transnational cooperation [5].

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See section on child rights at this page.

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Key EU policy and legislative measures include:

  • border procedures;

  • international protection procedures, including asylum procedures and Dublin procedures (to determine which Member State has responsibility to hear an international protection claim);

  • family reunification procedures;

  • relocation schemes;

  • Disembarkation schemes;

  • trafficking procedures and

  • return procedures. 

These include provisions which specifically deal with children, including provisions which focus on cross-border cooperation for unaccompanied children.

The role of EU agencies is important in this field, in terms of studies and development of practical measures of support for Member States, including guidance and training, but also through involvement in operations, such as Frontex involvement in border management activities or EASO, Frontex and Europol involvement in hotspots in Greece and Italy.

All

  • Pact on Migration and Asylum (2020) – introduces a new ‘solidarity mechanism’. Member states can choose among different forms of ‘solidarity’: relocation, support in return and measures aimed at strengthening the capacity of member states in the field of asylum, reception, return and externalisation policies. 

  • European Commission Communication on the protection of children in migration – Encourages member states to collect and exchange comparable data to facilitate the cross-border tracing of missing children and the verification of family links, as well as ensure swift and effective family tracing, within or outside the EU, by making full use of existing cross-border cooperation channels. Member States report on its implementation (last report in March 2021 for the year 2019), including collection and exchange of comparable data.

Border Management

  • Eurodac Regulation (EU) 603/2013 - Establishes the 'Eurodac' database for the comparison of fingerprints of third-country nationals and stateless persons who are apprehended in connection with the irregular crossing of an external border of a Member State, if they are at least 14 years of age, for the purpose of managing asylum applications. The Directive is currently under revision. EURODAC Regulation is currently being renegotiated based on the 2020 Commission proposals

  • Schengen Information System (SIS) - Enables competent national authorities, such as the police and border guards, to share information related to security and border management, including to enter and consult alerts on (missing) persons. Specialised national SIRENE Bureaux located in each Member State serve as single points of contact for the exchange of supplementary information and coordination of activities related to SIS alerts.

  • Visa Information System (Council Decision 2004/512/EC)- Allows Schengen States to exchange visa data. It consists of a central IT system and of a communication infrastructure that links this central system to national systems.

  • European Border and Coast Guard (Regulation 2019/1896) - As part of the European integrated border management, should support and coordinate technical and operational cooperation between Member States.

  • The Schengen Borders Code (Regulation (EU) No 610/2013) - Obliges Member States to include in the training curricula for border guards specialised training for detecting and dealing with situations involving vulnerable persons, such as unaccompanied minors and victims of trafficking. Member States must also nominate national contact points for consultation about children’s situations. A list of these national contact points is made available to the Member States by the Commission. In its 2021 Work Programme, the European Commission announced a revision of the Schengen Borders Code, which was scheduled for the second quarter of 2021.

Image: ©Dani Oshi

Image: ©Dani Oshi

Children of regularly residing migrants and 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. Article 25 provides for the appointment of contact points in each Member State, who will be responsible for exchanging information related to residence permits and protection from expulsion. 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 continuous residence in that Member State.

Children seeking or granted international protection:

  • The Dublin III Regulation (Regulation (EU) No 604/2013) determines which member state is responsible for reviewing a claim for international protection and provides explicit guarantees for children. The best interests of the child, and the right to family life, are also deemed as primary considerations when applying the Regulation (Recitals 13, 16 and Article 6).

    The Regulation obliges Member States to take into account family reunification possibilities when assessing the child’s best interests. For unaccompanied minors, States have specific obligations to identify family members, siblings or relatives. The obligation includes a proactive duty to search for family members and to take into account information furnished by the minor. Moreover, there are duties on States to promptly coordinate and exchange information with other Member States to identify family members, establish the existence of proven family links (by consulting with the other Member State, examining registers, residence permits, evidence of relations and, where necessary, DNA tests) and assess the capacity of the relative to take care of the child [6]. When the transfer is to be carried out, the Member State carrying out the transfer shall communicate with the receiving Member State the necessary information to allow for an adequate assistance, protection and respect of the rights of the person. The 2020 Commission proposal for a new Regulation on Asylum and Migration Management is under negotiation and would repeal the Dublin III regulation.

Trafficked children:

  • EU Trafficking Directive (Directive 2011/95/EU) – see in particular recital (5): “The law enforcement authorities of the Member States should continue to cooperate in order to strengthen the fight against trafficking in human beings. In this regard, close cross-border cooperation, including the sharing of information and the sharing of best practices, as well as a continued open dialogue between the police, judicial and financial authorities of the Member States, is essential. The coordination of investigations and prosecutions of cases of trafficking in human beings should be facilitated by enhanced cooperation with Europol and Eurojust, the setting-up of joint investigation teams […]”.

  • EU Strategy on Combatting Trafficking in Human Beings 2021-2025 (2021) - Taking into account existing national and transnational cooperation, the Commission commits to “enhance actions to improve victims’ support and referral in the cross-border context, towards the objective of setting up a European referral cooperation mechanism, with the support of relevant EU agencies (such as the European Asylum Support Office, Fundamental Rights Agency, European Institute for Gender Equality and Cepol)”.

Children who may be subject to return proceedings:

Cooperation between EU member states in the field of return is, up until now, largely related to data exchange and operational cooperation in the following areas:

  1. assistance in cases of transit for the purposes of removal by air

  2. organisation of joint flights for removals

  3.  mutual recognition of decisions on expulsion

  4. and implementation of guidelines on forced return

However, this will change if the ‘return sponsorship procedure’ proposed in the Asylum and Migration Management Regulation is adopted.

  • The proposed Asylum and Migration Management Regulation (part of the Migration and Asylum Pact) introduces a ‘return sponsorship’ scheme whereby Member States can sponsor the forced return of undocumented children and adults from another Member State. A best interests assessment would precede a transfer of unaccompanied children, but not so for children in families. The proposal is currently being negotiated, with a draft report presented in the European Parliament in November 2021. 

  • The European Border and Coast Guard Agency plays a key role in operational cooperation on return (articles 27-33), while taking into account children’s rights. The European Commission has issued a proposal to further strengthen the role of the Agency in carrying out returns [7].

  • EU Return Directive (2008/115/EC) – procedures and rights of children identified by immigration authorities as irregularly residing - Recital 7 and 19 enhance the need for cooperation with third countries and between the institutions involved at all stages of the return process. The Return Directive is currently being revised based on the 2018 European Commission proposal.

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Updated as of August 2021

In a nutshell:

  • The ongoing revision of the EU migration instruments and the Migration and Asylum Pact proposals (Reception Conditions Directive, Qualification Directive, Asylum Procedure Directive, Return Directive, Asylum and Migration Management Directive, etc) are proving protracted and contentious.

  • The new Pact on Migration and Asylum proposes harmonisation and responsibility sharing through a new Asylum and Migration Management Regulation (that will repeal the Dublin Regulation and introduce a return sponsorship scheme). On a positive note: the relocation of unaccompanied children would be prioritized, and the receiving Member States would benefit from greater support through the EU budget. However, the return sponsorship scheme will harm children and adults and seems to serve migration management purposes rather than the best interest of the child.

  • The revision of the Eurodac regulation poses significant risks as well as potential improvements regarding the protection and rights of children. It also lowers the age at which a child must be registered from fourteen to six, and allows the use of coercion against them. The lowering of the age of registration could be used to better coordinate to protect children, but data will also be used to enforce Dublin, restrictions on secondary movement and return decisions, which may run contrary to the best interests of the child and cause more children to avoid and disengage from contact with state authorities. It also expands the purposes of the Eurodac database to also identify and track secondary movement and enforce return decisions.

  • The Schengen Information System (SIS) has potential for making cooperation between Member States in cases of missing children in migration more efficient but also poses significant risks for child protection. The revision of the Schengen Information System has brought some positive changes in the use of SIS alerts in cases of missing children. For instance, it is now possible to differentiate between runaways, unaccompanied children in the context of migration and children abducted by a family member. However, in the case of missing migrant children, the competent authorities may move the child to a safe place in order to prevent him or her from continuing his journey, if so authorised by national law. Migration authorities are now also authorized to access to the database, including article 32 alerts. The SIS dual purpose of finding missing persons (incl. children) and managing return puts the protection of children at risk and may discourage reporting. A strict firewall between protection and migration enforcement is necessary. 

  • The European Commission recast proposal amending the Reception Conditions Directive strengthens the obligations of Member States to cooperate through indicators developed by the EASO and the Union network on reception authorities developed by EASO.

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Asylum and Migration Management

Image: ©Dani Oshi

Image: ©Dani Oshi

Missing children in migration

links:

[1] Best practice and key challenges for interagency cooperation to safeguard unaccompanied migrant children from going missing , Missing Children Europe, 2015

[2] Disappearing, departing, running away: A surfeit of children in Europe?, Terre des Hommes, 2009

[3] Summit study, ch. 3.3.6

[4] Summit study, ch. 3.2.5 and 3.3.6

[5] Summit study, ch. 3.2.2

[6] For more, see also ECRE/ELENA case law note on the application of the dublin regulation to family reunion cases (2018).

[7] Proposal for a regulation of the european parliament and of the council on the European Border and Coast Guard and repealing Council Joint Action n°98/700/JHA, Regulation (EU) n° 1052/2013 of the European Parliament and of the Council and Regulation (EU) n° 2016/1624 of the European Parliament and of the Council (September 2018)