France: Unaccompanied Children Detained at Borders

France detains as many as 500 children who arrive in the country alone each year in transit zones at the borders, where they are denied the protection and due process rights afforded other unaccompanied children on French territory, Human Rights Watch said today. Any unaccompanied child who arrives in France should be admitted to the country and provided with shelter and care while their immigration claims are decided.

Under French law, unaccompanied children - who arrive at an airport or seaport without parents or guardians to protect them - can be held in one of more than 50 transit zones for up to 20 days, during which time the government claims they have not entered France.This legal fiction allows the French government to deny due process rights to children in transit zones that unaccompanied children in France enjoy. France has not changed its practice despite a 2009 court ruling that children in the transit zones are in fact in France.

"France is using a legal loophole to compromise children's rights," said Alice Farmer, children's rights researcher at Human Rights Watch. "Children are physically in France, yet not in France in the eyes of French law, and this legal trick denies them protection."

New Human Rights Watch research updating its 2009 report, "Lost in Transit," demonstrates that France's adherence to this anomalous legal regime leaves children facing the risk that their asylum claims will not receive appropriate consideration or that their deportation will be improperly expedited.

To update the 2009 Human Rights Watch report, Human Rights Watch visited the transit zones in Roissy Charles de Gaulle and Orly airports in January and February 2014, interviewed 11 detained migrants, of whom three were unaccompanied minors, and followed court hearings for three others. Human Rights Watch also spoke with 22 government officials from the Interior Ministry, the Border Police, and the Office of Refugees, among others, and consulted experts from nongovernmental organizations and academia.

Detaining a child should be a last resort, given the negative impact of detention on children's mental health, experts say. Children detained in the transit zones, including at the Roissy airport, France's largest transit zone, are subject to truncated due process and face an expedited asylum test. They are sometimes detained with unrelated adults - in violation of international standards - making them vulnerable to exploitation and abuse. Unaccompanied children already "in" France are not detained and are given full asylum hearings.

In 2009, France's highest civil and criminal court, the Court of Cassation, held that "a child held at the Roissy Charles de Gaulle airport transit zone is de facto on French territory," erasing any legal justification for discriminating between these two groups. However, France has yet to acknowledge this ruling by changing its policy.

The number of unaccompanied children arriving in France has fallen to about 500 a year, from about 1,000 in 2008. Since the first Human Rights Watch report was published in 2009, France, has, with EU support, constructed a children's zone in the detention area at Roissy airport, but it is too small to hold all detained unaccompanied children. On at least one occasion in 2013, more than half of the children detained were held with adults.

When an unaccompanied child arrives at an entry point, the border police are required to inform the public prosecutor. The public prosecutor must then assign a guardian - known as an ad hoc administrator - to assist the child in the transit zones. Yet police are still able to pressure these children into signing paperwork before the child meets with the ad hoc administrator to find out about their rights and the procedures they face.

The ad hoc administrators, typically volunteers, have very limited resources to respond to the children's need for assistance with complex procedures, including immigration claims and age assessment. Particularly in more remote transit zones, such as Marseilles or Lyon, children may not receive any assistance.

Human Rights Watch found that the government conducts age assessments of individuals claiming to be children before an ad hoc administrator is assigned, leaving children without assistance. The Convention on the Rights of the Child entitles anyone claiming to be a child to be assigned a guardian as soon as that claim is made; consequently, children have help navigating complex procedures such as age determination. France allows no appeal of an age assessment, meaning that a child erroneously found to be an adult may be deported without adequate procedures.

Under French law, the government subjects unaccompanied children claiming asylum in the transit zones to expedited procedures that deny them their full rights. In transit zones, adults and children alike must first show that their claims are not "manifestly unfounded" before they can have a full hearing. The short deadlines, lack of access to lawyers, and complexity of the procedure conducted by the French Office for the Protection of Refugees and Stateless Persons (Office Français de Protection des Réfugiés et Apatrides, OFPRA) leave exhausted, travel-weary children without the capacity to prepare their claims properly.

In keeping with France's international law obligations, unaccompanied children should not be subject to accelerated asylum procedures such as "manifestly unfounded" hearings, because the process does not make certain that the child's best interest is the main consideration in deciding whether they may remain in the country.

France should immediately stop detaining children in transit zones, Human Rights Watch said. When unaccompanied children arrive at the border, France should admit them and then assess the child's immigration status and, if appropriate, the child's age through multidisciplinary exams. All children making asylum claims should have direct access to a full hearing, without a preliminary test for "manifestly unfounded" claims.

For as long as France operates the transit zones, it should ensure the ad hoc administrator system has adequate resources to provide effective assistance to children. Children should be assigned guardians as soon as they arrive and before they are subjected to age determination or any other procedures.

"There's no reason why unaccompanied migrant children in the transit zones should be subject to a different legal regime than other children on French territory," Farmer said. "They should be considered to be in France, with full rights to seek asylum, rather than detained with a mere skeleton of the rights they're entitled to."

For more Human Rights Watch reporting on France, please visit:

http://www.hrw.org/europecentral-asia/france

Background

Of the 8,883 people held in transit zones in 2012, 416 were unaccompanied minors; 542 unaccompanied minors were detained in 2011.

An official with the French Defender of Rights, an independent government body, told Human Rights Watch that 30 to 40 percent of the unaccompanied minors arriving at Roissy Charles de Gaulle are sent back to their country, and the remainder is admitted.

According to official statistics, about 90 percent of all children held in French transit zones are held in Roissy airport in Paris, one of Europe's largest airports and a major entry point into Europe's open border zone, the Schengen area. France has 51 smaller transit zones in the country and its overseas territories.

Roissy's main detention facility has a capacity of 160 people in 69 rooms. At least six other holding cells in the airport's terminals are used for short-term detention.

Despite international law requirements that unaccompanied children should not be detained for reasons of their immigration status, French law still maintains that children who do not fulfill conditions to enter France can be detained in transit zones. These children may be held for up to 20 days, in sharp contrast to unaccompanied children already in France, who cannot be detained.

President François Hollande campaigned on the notion that unaccompanied children would no longer be held in administrative detention. But children in transit zones were exempted from his promise, as they are not considered to be "in" France.

French law requires border police to inform the public prosecutor immediately when an unaccompanied child arrives at a border or entry point. The public prosecutor must appoint an ad hoc administrator - a guardian, who assists the child during administrative and judicial procedures. A judge reviews the legality of the child's detention in the transit zones after four days, and if detention is extended, again after eight days. After 20 days, a child who has not been deported must be released and granted access to French territory.

Findings

Transit zones strip children of rights

Since at least 2003, France has used transit zones as a migration control tool allowing officials to assess whether a person detained there fulfills the conditions to enter France and, if the government finds they do not, to facilitate speedy removal. Unaccompanied children in transit zones have significantly fewer rights than those considered to be in the country. The system may have an especially negative effect on children's ability to present their claims successfully due to fatigue, language barriers, or a failure to grasp complicated requirements for asylum claims.

The concept of a transit zone is a legal fiction, not a physical reality. Although some physical elements of transit zones, such as detention facilities and holding cells, are located at airports, the concept has been broadly defined to follow the person wherever they go. Effectively, it is as if the transit zone encases the person in a bubble, and that legal status follows them even if they physically move to hospitals and courts around France. They are de facto, but not de jure, in France.

The French government has repeatedly contended that children held in transit zones are subject to different laws because they have not entered France. Raphael Sodini, counselor on immigration to the Interior Minister, told Human Rights Watch in February 2014 that to provide appropriate care to children on French territory, it was "necessary to take a different approach to those at the border." But there is no justification under international human rights law for discriminating between these two groups of children.

Children detained in transit zones may pursue limited options for release. The unaccompanied child is allowed to request a children's judge - a specialized judiciary for children's affairs - to make a request to enter France either as an asylum seeker, in which case the child would be placed in care, or to be reunited with family. If the judge turns the child down, the child remains in detention and may be deported at any point.

Fabrice Leggeri, head of the Interior Ministry department charged with irregular migration told Human Rights Watch in February 2014 that people held in transit zones are not deprived of their liberty because they can leave at any time by agreeing to their removal or onward journey. Such a tortured logic of the definition of detention is at odds with international law, under which the holding of any child in administrative detention in a transit zone would constitute deprivation of liberty.

Despite rulings from France's own courts and judgments clarifying international law binding on France, France has persisted with this detention policy. The Court of Cassation, France's highest civil and criminal court, held in 2009 that, "A child held at the Roissy Charles de Gaulle airport transit zone is de facto on French territory." In 1996 the European Court of Human Rights, in Amuur v. France, issued a binding opinion stating that, "The international zone does not have extraterritorial status" and that people held in the international zone of a Paris airport are subject to French law. France has not revised its law to conform to these rulings. When Human Rights Watch sought an explanation from multiple government officials, they were unable to provide one.

The Convention on the Rights of the Child, to which France is party, obliges the government to afford special assistance and protection to children without family. The Committee on the Rights of the Child, the body charged with overseeing the convention's implementation, stated in 2013 that "States should expeditiously and completely cease the detention of children based on their immigration status." The committee has also observed that transit zones cannot be used to diminish a country's responsibility toward a child:

[S]tate obligations [to unaccompanied children] cannot be arbitrarily and unilaterally curtailed either by excluding zones or areas from a State's territory or by defining particular zones or areas as not, or only partly, under the jurisdiction of the State. Moreover, State obligations under the Convention apply within the borders of a State, including with respect to those children who come under the State's jurisdiction while attempting to enter the country's territory.

The Separated Children in Europe Program, a network of nongovernmental groups and UN agencies working with unaccompanied children in European countries, states in its best practice guidelines that unaccompanied children "must never be detained for reasons related to their immigration status or illegal entry. This includes, whether temporary or otherwise, detention at the border or in international zones[.]"

France should immediately revise its laws and practice to admit unaccompanied children directly to the territory and give them the same care afforded other unaccompanied children in France, instead of detaining them in transit zones.

Children detained with unrelated adults are at risk

Providing a special place for unaccompanied children, the children's space (espace mineurs) inside the main detention facility at Roissy is a positive step, but the space is not large enough to eliminate the problem of housing children with unrelated adults. When children are detained with unrelated adults - which violates international standards on conditions of confinement - they are vulnerable to abuse and exploitation.

The children's space at Roissy consists of three bedrooms, each with two beds. When there are more than six unaccompanied children, or an incompatible number of boys and girls, the oldest - for example, those over 13 - are sent to stay in the adult section. "Sometimes we don't have a choice, especially in September or October when there is a lot of traffic," the commander of the detention facility (ZAPI 3) at Roissy told Human Rights Watch, indicating this was not an uncommon practice. A staff member working in the children's space said that in October 2013 10 children were in the adult zone, in addition to the six in the children's zone.

Staff members in the children's zones told Human Rights Watch that they try to offer assistance to children placed in the adult facility, "But it's not always possible," one said. A 17-year-old girl told Human Rights Watch that she spent two days in the adult facility, sharing a room with five unrelated women, during which time she had no contact with the mediators from the children's zone or with her ad hoc administrator.

Although children held in the children's space have access to many of the amenities available in the rest of the detention center, they do not have access to nongovernmental groups that may offer needed assistance, including advice on legal and procedural matters. The French group, Association nationale d'assistance aux frontières pour les étrangers (National association for aid to foreigners at the borders, Anafé), provides some assistance to people in the transit zones generally, but children in the children's space cannot access this help, as they cannot move outside the espace mineurs.

Neither adults nor children have regular legal assistance. Anafé has for some time been advocating permanent legal assistance in the transit zones for children and adults alike.

France should ensure that unaccompanied children held in transit zones are never held with adults and that they have access to legal and other assistance.

Children get inadequate assistance when they arrive

Two organizations, the French Red Cross and the nongovernmental group Family Assistance, provide ad hoc administrators for unaccompanied children who arrive at Roissy. The system has improved significantly since 2009, including through increased training of volunteers, but still lacks sufficient government funding to meet the requirements of guardianship laid out by the Committee on the Rights of the Child. When large numbers of children arrive, or when children arrive on weekends or holidays, there can be delays in assigning guardians. Some children are left without assistance during key moments.

The primary task of the ad hoc administrator is effectively to validate the authorities' actions by making up for the child's lack of legal capacity and ensuring that the child is represented. In practice, the border police do not ensure that children who arrive at ports of entry other than Roissy are systematically given assistance.

Without assistance, children are extremely vulnerable. Anafé, the principal organization providing legal advice to foreigners arriving at Roissy and Orly airports, documented a case in July 2013 of a 16-year-old Ivorian girl who was deported without seeing an ad hoc administrator. She was returned from Orly to Morocco, where she had no family members and no ties, before being sent on to Côte d'Ivoire.

When children arrive at Roissy there is often a delay of several hours or a day before the administrator meets the child. Even without delays the system does not require an ad hoc administrator to be present when the child is subjected to some of the most important procedures in the transit zone, including when they are read their rights, presented with initial procedural paperwork to sign, or undergo age determination.

Sylvie M., a 17-year-old girl from the Democratic Republic of the Congo, said she was detained at about 6 a.m. and held in the terminal detention cell for 12 hours before being sent to the main detention center (ZAPI 3), where she didn't see an ad hoc administrator until after an age determination exam two days later. "I stayed there a long time before anyone explained anything," she said.

Children arrive at Roissy exhausted and vulnerable. Police ask them to sign documents before anyone arrives to represent them. When Human Rights Watch observed the court proceedings for Abid M., a 16-year-old unaccompanied boy from Syria, the defense lawyer asserted that Abid had signed initial paperwork prior to meeting his ad hoc administrator. This paperwork enabled the government to start deportation and age assessment proceedings for him.

The French Red Cross, the largest organization providing ad hoc administrators, has repeatedly sought a more permanent presence at Roissy. That would require increased governmental funding. An ad hoc administrator told Human Rights Watch that he and others had been pushing to have administrators present when children are initially read their rights and have to sign paperwork, to ensure they understand the procedures they face and are given the chance to present their case most effectively.

The Committee on the Rights of the Child says countries should appoint a guardian as soon as someone is suspected of being an unaccompanied child. That person should be consulted and informed about all actions taken with regard to a child, including age assessment. This should happen before the age assessment, to give the claimant the benefit of the doubt. That French law permits age determination of a child without a guardian leaves children without basic protections.

The ad hoc administrators system is underfunded, leaving children without assistance at key moments. The system relies heavily on volunteers, and the government reimburses a minimal rate of €150 per child represented, with no provisions for covering out-of-pocket expenses such as transport, communication, or additional work for appeals. A veteran ad hoc administrator told Human Rights Watch that the payment is insufficient to allow adequate response to a child's needs at each stage of the immigration review process.

France should provide adequate resources for its guardianship program and ensure that the needs of children in all transit zones are met. The government should make sure officials assign a guardian to anyone claiming to be, or they suspect is, under 18.

Inappropriate procedures for asylum

Unaccompanied children in transit zones are subject to expedited asylum procedures, and must prove that their claim is not manifestly unfounded while unaccompanied children "in" France proceed directly to a full asylum hearing. This fails to acknowledge the vulnerability of transit children and the time needed to prepare their claims effectively.

When Human Rights Watch met with the Office for Refugees in February 2014, officials described a complex hearing procedure for children in transit zones somewhere between a "manifestly unfounded" test and a full asylum hearing, leaving concerns that children are not given the time or resources to prepare for such a process. When a child in a transit zone claims asylum, the French Office for the Protection of Refugees and Stateless Persons (OFPRA) determines whether the child's claim is "manifestly unfounded" and issues an opinion to the Interior Ministry. If the child's claim is not rejected as manifestly unfounded, the child may enter France and submit a regular asylum claim. If the claim is rejected, the child must file an appeal within 48 hours. The child is protected from deportation during the appeal. If the child does not appeal or if the appeal is unsuccessful, the child remains in detention and may be deported at any point.

Complex procedures can confuse unaccompanied children, particularly those who have traveled long distances and are exhausted. Human Rights Watch interviewed Yemi G., a 17-year-old unaccompanied Nigerian boy, in a holding cell 10 hours after he had been stopped as he got off a plane. He said he did not understand what would happen to him or to his asylum claim. "I told the police I want to seek asylum," he said. "This room is like a cage… I'm scared now, I don't want to go back to Nigeria… I'm tired but I can't sleep, I'm worried."

Children like Yemi should not be subjected to expedited procedures. The central tenet of the Convention on the Rights of the Child is that the best interest of the child must be the primary consideration in decisions by administrative authorities, and this explicitly includes asylum decisions. Experts for the Separated Children in Europe Program, a European network of nongovernmental groups, maintain that unaccompanied children should be exempted from accelerated asylum determination procedures, such as the "manifestly unfounded" test.

Children's cases should be considered in full, with due attention to the best interests of the child, and with the child given adequate legal assistance. France should immediately suspend the use of "manifestly unfounded" hearings for unaccompanied children seeking asylum.

Age determination falls short of international standards

France has inadequate procedures for determining age. There is no assurance that children get the benefit of the doubt; they do not always have assistance from ad hoc administrators during the procedure; there is no meaningful appeal; and the government still seems to rely heavily on outdated medical testing.

Children are not automatically presumed to be children while age determination is pending and so are not assigned an ad hoc administrator until the procedure has taken place. Consequently, some are treated as adults until their claim is resolved.

Some children have no assistance navigating the flawed procedure. According to the Committee on the Rights of the Child, children should be given effective representation by a guardian during age determination. Experts with the Separated Children in Europe Program urge that if there is doubt about a child's age or identity, the child should be allowed to enter the country during the assessment, and an independent guardian should be appointed immediately after a person claims to be an unaccompanied child, regardless of whether the authorities require further age assessment.

Children erroneously found to be adults have no meaningful way to appeal that decision. Children in such a position are then treated as adults - and potentially subject to expedited deportation procedures.

French policy states that bone tests should be a last resort, and Sodini, one of the Interior Ministry officials, told Human Rights Watch that age determination should take into account a wide body of evidence.

Yet interviews with police and staff in the transit zones, nongovernmental groups, and ad hoc administrators indicate that France still relies heavily on a bone test to determine age. Physical assessments - without taking into account other indicators of age - are imprecise. The French high council for public health (Haut conseil de la santé publique) specifies that such tests have a standard margin of error of one to two years. Age assessments should not rely exclusively on physical tests but should take into account psychological maturity, demeanor, and social and educational history.

The numbers themselves reveal concerns about the accuracy of France's age assessments. Figures from the Interior Ministry indicate that in 2012, 7 percent, or 16 of 217 purported children at Roissy who were sent for bone tests were found to be adults, compared with 10 out of 15, or 67 percent, at Orly airport.

France should give the benefit of the doubt to the claimant, and assign an ad hoc administrator to assist with the procedure. France should redouble its efforts to ensure that multidisciplinary assessments are used consistently, end over reliance on faulty medical tests, and ensure sufficient avenues for appeal.