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Statement by Ms. Erika Feller, Director, Department of International Protection, UNHCR: The Right to be Heard for Separated Children Seeking Asylum in Europe, Working Group I - Asylum and Migration, Norrköping, Sweden

DIP Statements, 1 March 2001

My thanks go to the Swedish Ministry for Foreign Affairs for inviting me to participate in this European Union seminar on "Children affected by armed conflict and forced displacement – A Child Rights Perspective in Development Co-operation and Migration Policies". The level of participation at this seminar is testimony to both the significance and timeliness of the topic. I am particularly pleased to be able to take part in these discussions during this commemorative year of the 50th anniversary of the 1951 Convention relating to the Status of Refugees. It is also the year in which UNHCR will be pursuing global consultations on the framework and on the governance processes and structures for refugee protection. This seminar we hope will generate ideas, even specific proposals, which through the Global Consultations process could find international endorsement.

This working group session on Asylum and Migration is tasked to examine a wide range of topics (right to education, to be heard, and to psychosocial rehabilitation), from a number of different perspectives (in relation to prevention, response during conflict, at time of flight and asylum, and for sustainable return). I want to concentrate my remarks on what is very much a priority concern for UNHCR on the European continent: the right to be heard for separated children seeking asylum in Europe. In so doing, I am not underestimating the importance of the other issues for UNHCR. As regards education, for example, UNHCR recognizes and indeed emphasizes the important protection role which education can play, especially as it relates to concerns over forced recruitment of children. Given time constraints, and as I believe that these elements are being expanded upon by the AHC in the parallel working group, I will not elaborate on this topic.

In relation to the separated children issue, there are important baseline principles to highlight from the outset. Article 22 of the 1951 Refugee Convention makes specific reference to the right to elementary education. More generally, the Preamble to the Convention delineates the close linkage between human rights law and refugee law. Article 22 of the Convention on the Rights of the Child is an important reference point in this context, providing as it does for the applicability of articles in the CRC and in other human rights or humanitarian instruments specifically to refugee children. The CRC requires perhaps the most exacting standards for protection and assistance to minors under any international instrument. With its near universal acceptance, it is a valuable frame, from UNHCR's perspective, for any consideration of asylum issues as they affect children, not least separated children.

Separated children pose a major challenge in Europe. According to available but incomplete statistics in 1999, 13,600 separated children sought asylum in the 15 European Union (EU) countries. This represented 5.3 percent of the total number of asylum applications lodged within the EU. Separated children sought asylum in Europe from countries as varied as the Federal Republic of Yugoslavia, Rwanda, Sierra Leone, Russian Federation, Afghanistan, Sri Lanka, China, Angola or Somalia.

Behind this reality, there are a number of complicated management problems which stem from conceptual, legal and procedural divergences of approach in the countries affected by the problem. The EU harmonization process offers important opportunities for reconciling these differences, but ensuring that the best interests of the child refugee are respected in the context of the larger migration problem is, today, a singular preoccupation. How to respond is what I want, now, to explore.

I. Who is a separated child seeking asylum in Europe?

Let me take the analysis first to the definitional issue. In line with internationally agreed standards, UNHCR considers any child under 18 years of age, who is outside her country of origin and is separated from her parents or legal/ customary primary caregiver to be a separated child. A separated child is not always an unaccompanied child. The different lies principally in the separation from the previous caregiver. Hence, although the child may in fact be accompanied by an adult, she may well be still a separated child and in need of special protective measures, having been separated from the previous or traditional adult caregiver.

This distinction is not one of semantics. Experience has shown that the making of it can be crucial to enabling early identification of a child separated from her parents as is necessary for reunification purposes, or to protect from abuse at the hands of an adult faced with a new and at times unwanted responsibility. There is, in fact, increased recognition of the need for this distinction. There remains, though, variations in how States approach identifying a child as separated. In some European countries, the practice is not to recognise children who travel with an accompanying adult relative as a separated child. This is potentially harmful in that in certain cases how the situation or status of the child is defined will determine access to procedures, as well as how determination of status is approached by the relevant authorities. In UNHCR's assessment, it is essential to agree on a region-wide, common definition of the notion of separated child, which is consistent not least with the Convention on the Rights of the Child. The term "separated child" could achieve clearer definition in the context of the EU harmonization process, including in the EU Directive on Asylum Procedures. This would be an important first step in ensuring the better protection of children in the asylum procedures. Working on globalized recognition of this definition could also be an aim.

II. How are asylum claims from separated children to be considered?

Turning to the process for considering asylum claims from separated children, giving content to Article 12 of the CRC and adapting it to the asylum process should be the focus. The principle of the child's "best interests", included in Article 3 of the CRC, is the best starting point here. This Article provides that governments and public and private bodies must ascertain the impact on children of their actions, in order to ensure that the best interests of the child are a primary consideration. Action taken on asylum demands is included within the ambit of this provision. As the asylum needs of children are not always identical to those of adults – in fact they can at times even conflict – the State is obliged under this article to take cognizance of any conflicts of interest and to make the "best interests" of children "a primary consideration". A balancing of different interests might be the result . For example, seeking to realize the right to family reunification (CRC Article 10) can give rise to conflict with the child's expressed wishes (CRC Article 12). The same sort of balancing act between interests and wishes can beset discussions on whether or not a child should be returned to her country of origin. A child's wishes will be strongly affected by the conditions that prompted departure, the expectations of family members and of the home community, and information available to the child.

What is clear is that, in deciding on the best interest of the child, attention has to be paid to the need to involve children in the making of decisions that affect them. (CRC, Article 12). Put another way, the "best interest of the child" should be properly understood to accommodate an opportunity for the child to determine what those best interests are, even where this, in the final analysis, is not held to be determinative of what is in the best interest in the individual case. Against this background, a requirement for a comprehensive assessment of the child's "best interests" could be included in the EU Directive on Asylum Procedures and other relevant EU instruments.

Just an interjection at this point, Mr. Chairman, although the "best interest of the child" principle is a basic CRC consideration, it is also important to emphasize that, for decisions on the refugee claim of a separated child, the refugee definition in the 1951 Convention relating to the Status of Refugees remains the determining framework. The same definition of "refugee" applies to all individuals, regardless of age. Of course, particular regard must be given to circumstances such as the child's stage of development or her possibly limited knowledge of conditions in the country of origin. These have to be part of the examination of the factual elements of the claim of a separated child. It is also a fact that certain human rights violations have children specific manifestations – ranging from sexual abuse to forced conscription. As the EU countries endeavour to give content to their commitment to a full and inclusive application of the Convention, including its definition, UNHCR would hope that the specificities of a child's situation could be appropriately and directly also addressed.

The child's right to be heard has important procedural implications. Article 12 of the CRC not only requires that children should be assured the right to express their views freely, but also that they should be heard and that their views be given "due weight". UNHCR has welcomed the fact that attempts are in train to incorporate the principle of the right to participate into the refugee or asylum determination processes in Europe. Children normally do have the right to have their views represented during interviews, and most States have an age limit above which the child either should be or must be consulted (usually 12). Nevertheless, there are still member States where the child's rights in this area are marginalized; for example in some States the right to participate will apply only in relation to matters affecting care and assistance.

It would have been preferable had the 1997 European Union Council of Ministers "Resolution on Unaccompanied Minors who are Nationals of Third Countries" incorporated the right of children to participate in the making of decisions that affect them. It did not. Hopefully the EU harmonization process will move on from this, to guarantee that children will be consulted and their views taken into proper account, whenever decisions affecting them are being made.

A number of procedural safeguards are usually needed to ensure that a child's views will be given due weight. These are well reflected in the Statement of Good Practice, drafted jointly by UNHCR and Save the Children, for the Separated Children in Europe Programme. This programme, began in 1997 and aims to realize the rights and best interests of separated children who have come to, or across, Europe, by establishing a shared policy and commitment to best practice at national and European levels. As part of this process, the programme is developing partnerships with organizations working with separated children in European countries and working with European institutions. The Statement of Good Practice is available to participants.

By way of one specific example here, the guardianship and legal representation issue is illustrative. In relation to guardianship, policy and practice across Europe is diverse. In several EU States guardians or legal advisers are not appointed systematically to advise and protect separated children, while in others, the appointment of guardians is automatic in all cases involving separated minors. However, even where guardians are appointed, there is no consistency in practice. While a comprehensive approach is adopted in some States, with the guardian having wide-ranging and long-term responsibilities for the child, other States only provide guardians on a short-term basis, performing simple administrative formalities. Similarly there is no uniformity of approach as regards legal representation for separated children in the asylum process. In a number of EU member States, representation is now provided throughout the asylum process. In others, however, either legal representation is not provided for at all, or for the first time only when the child appears before the adjudicating body.

A fair outcome, geared to a best interests determination balanced appropriately against a properly tailored analysis, legal and factual, of the elements of the claim, necessitates the involvement of a legal representative and the input of an informed guardian. There is a need, in our view, for both specifically to be provided for in the context of EU harmonization.

III. Asylum for Children in the context of the migration debate:

Concerns over access to territory and to asylum procedures for separated minors in some EU member States has been a focus for representations by UNHCR. Although safeguards do exist, access to normal refugee status determination procedures is at times complicated in many States through the use of the so-called "accelerated admissibility" procedures. Consistent with conclusions of the Tampere Summit of the European Council, UNHCR advocates the principle that separated children seeking protection should not be refused entry or returned at the point of entry, and that, when such children seek asylum, this should be properly examined through the appropriate refugee status determination procedure.

A number of EU member States grant permits enabling the stay of separated minors, as an alternative to access to asylum procedures. This is of course, on the one hand, a very generous response. The downside is that it often precludes a proper look at the best interests question. Where a separated child is not in need of international protection, her best interest could well be to return her to the country of origin for family reunification purposes. There would be value, in our experience, in reflecting upon the advantages and disadvantages of the automatic grant of permits to separated children arriving in Europe, without any effective consideration of their asylum claim. This would be particularly timely in view of the growing victimization of children through people smuggling.

The resort to detention, often as a deterrent to illegal entry, also can have serious, long-term consequences for separated children. Detention of children remains, unfortunately, a common practice in a number of States, whether it be in so called "waiting zones" at airports, or in detention centres, police cells, or prisons. The age of children who can be detained varies, and there are disturbing cases of children as young as 13 or 14 in detention. Alternatives to detention, which are more child-sensitive, should be further explored, and best practices should be gathered.

A complicating factor is the fact that separated children, like other asylum-seekers, frequently arrive in Europe with false documents or no documents at all. As a result, it can prove difficult to ascertain their age, and if they are incorrectly identified as adults, treatment inappropriate to the age, including as regards place and conditions of detention, will follow.

How best to make an age assessment is a vexing question. In most states, some form of medical assessment is undertaken to attempt to determine the age of the child. UNHCR guidelines advocate that methods "must be safe and respect human dignity". For children it is important to avoid widespread unnecessary X?rays and limit to the absolute minimum required body examinations, which may prove intrusive and sometimes frightening. Neither sort of examination appears to provide conclusive evidence of age, and the margin of error can be wide. If a medical examination is necessary, it should be carried out by a physician with appropriate expertise and familiarity with the child's background; and medical examinations should be careful to protect the physical integrity of the child.

We would recommend minimum guarantees being included in any harmonized legislation relating directly to age determination. In dealing with inconclusive cases the "benefit of the doubt" principle should be applied in favour of the child.

Finally, there is the issue of the return of a separated child who has gone through the asylum process and has been rejected. This would benefit from further reflection. While there is no doubt that return is important for the credibility of the asylum system, special safeguards are warranted where the return contemplated is that of a rejected, separated child. Certain countries tend to deport separated children without sufficient prior preparation, to ensure that children are being returned to situations where appropriate care and protection are available. The "best interests" principle in our understanding would require that a child asylum seeker be returned only after a suitable family member or caregiver has been identified. The potential of a UNHCR, NGO, and State partnership in this area has not been fully enough explored.

IV. Conclusion:

Let me return briefly, before closing, to UNHCR's Global Consultations, a process which we launched last year in an effort to revitalize the international refugee protection regime. One stated objective of this process is to allow for examination of protection concerns not adequately, if at all, covered by the terms of the 1951 Convention. States endorsed our intention, inter alia, to promote a child rights perspective throughout the Global Consultations but did also, call for, a separate focus on child protection issues for more thorough debate. This debate will take place in 2002 and will, we hope, draw directly on the results of seminars such as this one. It has been put to us by some that the legal and procedural issues are such that an Optional Protocol to the 1951 Convention on the Protection of Refugee Children might be an interesting possibility to explore. I wonder if there are views on such a proposal, and on areas which it could cover?

For the shorter term I would welcome ideas from participants on those key issues which should find their place on our Consultations agenda for broader international discussion.

Thank you.