Durable Solutions

Image: ©Dani Oshi

 

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Finding a durable solution means identifying a country in which a child will live their life. A durable solution is one that, to the greatest extent possible, fulfills the best interests of the individual child in the long term and is sustainable and secure from that perspective. A secure and long-term residence status in that country is vital to ensure that children in migration access all of their rights, including their rights to well-being and development. A durable solution may involve integration in the country of residence or resettlement or reunification with family members in the country of origin or in a third country, with support.

Governments should seek durable solutions for a child, whether they are within a family, are unaccompanied or separated by/from their parent(s) or caretaker(s). Because a decision on a durable solution will have fundamental long-term consequences for the child, it should be based on a formal procedure to examine their best interests and protection needs, and address their rights as children. This procedure should also ensure the child is well informed and duly take into account their views.

National laws and policies concerning status determination have frequently been set out in a fragmented way, with different grounds for decision-making spread between different laws, policies and procedures. This is beginning to change, in particular with a focus on developing best interests’ determination procedures in relation to unaccompanied and separated children, following increased guidance from international law sources and agencies, such as CRC General Comment No 6 and Safe and Sound from UNHCR and UNICEF.  Procedures concerning children within families often focus primarily on the status of the adult family members, with children’s status dependent, and little or no consideration of their own rights and needs.  This includes procedures concerning children’s access to birth registration and acquisition of a nationality, which in some European countries are dependent on the parents being documented or having legal residence, even where the child would otherwise be stateless. However, there has been an increasing focus internationally on the best interests of the child in these proceedings as well, most recently in General Comments 22 and 23 of the Committee on the Rights of the Child. 

Transnational cooperation between States can also be an important element in identifying and implementing durable solutions in the best interests of the child.  This is an area which requires further focus and action at European level (see also Spotlight sections on Solidarity and cooperation between EU Member States and on Fulfilling migrant children’s rights in EU external policy).

Image: ©Dani Oshi

Image: ©Dani Oshi

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The best interests of the child, and how all of their rights are fulfilled, are relevant to finding durable solutions.  Ensuring that the child is able to develop in an environment which will meet his or her needs and fulfil his or her rights as defined by the CRC should be at the centre of durable solution process. In relation to finding and implementing durable solutions 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. 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 following General Comments of the UN Committee on the Rights of the Child:

 

Image: ©Dani Oshi

Image: ©Dani Oshi

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There is no single EU legal instrument dealing with finding durable solutions for children in migration, whether they are unaccompanied or within families.  Instead, different legal instruments apply depending on whether the child may be the child of regularly residing migrants and beneficiaries of international protection, seeking international protection, trafficked, or falling within the scope of the Return Directive.  There are several cross-cutting EU policies and funding instruments relevant to the issue.

All

  • Pact on Migration and Asylum (2020) – Does not mention durable solutions. 

  • 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.

  • European Commission Communication on the protection of children in migration (2017)-
    “Durable solutions are crucial to establish normality and stability for all children in the long term. The identification of durable solutions should look at all options, such as integration in a Member State, return to the country of origin, resettlement or reunification with family members in a third country. It is essential that a thorough best interests determination be carried out in all cases.” (p.11)

  • Council Conclusions on the protection of children in migration (2017)- “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; resettlement, integration or return depending on their specific situation and needs”.

Trafficked children:

  • EU Trafficking Directive (Directive 2011/95/EU) – see in particular Article 16 which requires member states to take the necessary measures to find a durable solution based on an individual assessment of the best interests of the child. 

  • 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. It also highlights the limited opportunities for the victims to rebuild their lives, and emphasizes the need to develop reintegration and rehabilitation programmes and opportunities for durable solutions.

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. 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 – covers conditions under which family reunification is granted to regularly residing non-EU migrants, establishes procedural guarantees and provides rights for the family members.

  • EU ‘Blue Card’ Directive – covers status and rights of people admitted for the purpose of highly qualified employment and their family members. The Directive provides for Blue Card holders to migrate with their families and access long-term residence status. 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.

  • Note: other EU legislation on regular migrants does not provide provisions for durable solutions for children or refer to the best interests of the child. The EU Single Permit Directive sets down a single application procedure and common set of rights for many migrant workers, but does not include provisions related to the residence of dependent children. The EU Directive on researchers, students, etc. and the EU Intra-Corporate Transferees Directive address aspects of the situation on family members of researchers and intra-corporate transferees respectively, but do not consider residence rights. The EU Seasonal Workers’ Directive does not provide for family reunification for children of permit holders.

Children seeking or granted international protection:

  • The Qualification Directive (2011/95/EU) covers the substantive basis for status determination for children seeking international protection and the rights which flow from international protection status, with procedural aspects covered by the Procedures Directive. The Qualification Directive is currently being revised based on the 2016 European Commission proposal

  • 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.

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 6.4 on granting a right to stay for compassionate, humanitarian or other reasons and Article 6.5 refraining from issuing a decision to people with an ongoing application. The Return Directive is currently being revised based on the 2018 European Commission proposal.

  • EU Strategy on Voluntary Return and Reintegration (2021) – One of the focus points is return counselling. When dealing with cases regarding children, “counselling needs to be provided in a child-friendly language and should take into account the specific situation of the minor, ensuring the respect of the best interests of the child”. Voluntary return assistance should be provided upon arrival and take into account individual abilities and specific needs, notably of vulnerable groups. 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. 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.

  • Asylum and Migration Management Regulation proposal (2020) - Part of the Pact on Migration and Asylum, it includes a ‘return sponsorship scheme’ that applies to children. The Commission’s proposal includes the safeguard that a best interests assessment must precede the transfer of an unaccompanied child to another Member State (art. 13§5). 

  • European Commission and High Representative of the Union for Foreign Affairs and Security Policy Joint Communication Towards a comprehensive Strategy with Africa (2020) – Highlights the need for strengthened engagement to prevent irregular migration and putting an end to the loss of life at sea is needed. This includes stepping up the fight against the smuggling of migrants, with an emphasis on addressing the role of criminal networks and should go hand in hand with the fight against trafficking in human beings. Across all activities, the EU will continue to pay particular attention to respecting its core values and in particular to taking into account the particular needs of persons in vulnerable situations, unaccompanied minors.

  • European Commission Communication on the protection of children in migration –
    “Clear rules should be established on the legal status of children who are not granted asylum but who will not be returned to their country of origin” (p.12). “Where it is in their best interests, children should be returned to their country of origin or reunited with family members in another third country. Decisions to return children to their country of origin must respect the principles of non-refoulement and the best interests of the child, should be based on a case-by-case assessment, and following a fair and effective procedure guaranteeing their right to protection and non-discrimination.” (p. 13). “It is important to ensure that children who will be returned are given prompt access to appropriate (re)integration measures, both before departure and after arrival in their country of origin or another third country.”

  • EU Return Handbook, (2017) - Intended to guide implementation of the Return Directive. The Handbook states: “Durable solutions are crucial to establish normality and stability for all minors in the long term. 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….” (continues, including with further emphasis on the right to be heard, references to interpretative and operational guidance, and more of the residence status of unaccompanied children, see p.44-45). However, all this content in the Handbook only references unaccompanied children, rather than all children in migration, in line with child rights standards and the EC Communication on children in migration.

  • UN Global Compact for Migration (GCM) (2018) - Has child rights and best interests as a cross-cutting principle, mentions the need to find sustainable solutions in particular for unaccompanied and separated children, and includes the action:
    “Ensure that return and readmission processes involving children are carried out only after a determination of the best interests of the child…” (para 37g)

  • UN Global Compact on Refugees (GCR) (2018) - Addresses the three traditional durable solutions of voluntary repatriation, resettlement and local integration, as well as other local solutions and complementary pathways for admission to third countries. Within this, it specifically highlights the use of emergency transit facilities or other arrangements for emergency processing for resettlement for women and children at risk (para 92).​

Stateless Children/Children at risk of statelessness

  • EU Strategy on the Rights of the Child (2021) – Invites Member States to promote and ensure universal, free and immediate access to birth registration and certification for all children. Moreover, increase capacity of front-line officials to respond to statelessness and nationality-related problems in the context of migration.

  • 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/non-EU relevant 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

Jurisprudence

Please consult the general measures page here.

Image: ©Dani Oshi

Image: ©Dani Oshi

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Updated as of August 2021

 In a nutshell:

  • The ongoing revision of the legal instruments (e.g. Asylum Procedures Directive, Qualification Directive, Return Directive, RAMM, APR, etc) are proving protracted and contentious.

  • The implementation of the Trafficking Directive across Member States requires more work in relation to its durable solutions provisions.  

  • The European Commission proposal revising the Return Directive in line with the strong political focus on increasing returns. The Recasting proposal does not improve the safeguards for children, unaccompanied or accompanied, e.g. by formalising the pre-return best interests assessment (new article 12). There are clear concerns about the impacts on children and child rights safeguards. The European Parliament has not yet formalised their stance on the proposal (Dec ‘21). The 2017 Return Handbook has some strong language around procedures for unaccompanied children, while also reflecting problematic policy recommendations.

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Children seeking or granted international protection:

  • Several organisations have been actively commenting on the revision of the international protection legislation, including the Qualifications Regulation and the Resettlement Regulation.

  • ECRE has produced detailed comments on the European Commission Proposal for a Qualification Regulation (available here), and the proposal for a recast Return Directive (available here). ECRE has also published two Policy Notes on the proposal for a Union Resettlement Framework: Untying the Union Resettlement Framework (available here) and EU Resettlement for Protection (available here). An ECRE/ELENA Legal Note on Ageing out and Family Reunification can be found  here.

  • EASO (2019) Practical Guide on the best interests of the child in the asylum procedure. Consult EASO website for other kinds of support and guidance that may be relevant to durable solutions, including “permanent support: supporting and stimulating the common quality of the asylum process through common training, common asylum training material, common quality and common Country of Origin Information (COI).”

Returns

Regularisation

Unaccompanied and Separated Children

Statelessness

  • European Network on Statelessness, Statelessness and the Global Compact for Safe, Orderly and Regular Migration. It includes analysis of how the Compact relates to children’s rights enshrined in the UN Convention on the Rights of the Child, most notably Article 7 which states that children will be registered immediately after birth and have the right to acquire a nationality, particularly where the child would otherwise be stateless.

Image: ©Dani Oshi

Image: ©Dani Oshi