Recommendation
1703 (2005)1
Protection
and assistance for separated children seeking asylum
1. Half of the world’s
refugees and displaced persons are children, defined as persons under
18 years of age by the 1989 United Nations Convention on the Rights of
the Child. They have fled their homes to escape persecution, human rights
violations, exploitation, abuse or natural disasters; more than 2 million
have been killed in conflicts during the past decade; thousands lost
their lives in the recent tsunami in Southeast Asia while those who survived,
traumatised and confused, risk falling prey to unscrupulous traffickers.
2. Children are vulnerable
and among them the most vulnerable group is represented by those who
are in a foreign country seeking asylum and separated from their parents
or legal or customary primary care-givers. Separated children seeking
asylum make up approximately 4% of the number of asylum applicants in
Europe; in some member states, including countries in which immigration
is a relatively new phenomenon, this proportion can attain 10%.
3. The Parliamentary
Assembly considers the situation of separated children seeking asylum
in Council of Europe member states a matter of urgent concern. National
legislation, policies and practices fail to address in a coherent manner
the threefold protection needs of this group: as children, as children
without parents or legal care-givers and as children in the asylum process.
4. Even if all Council
of Europe member states are parties to the United Nations Convention
on the Rights of the Child, a number of provisions laid down therein
are often neglected by states in the elaboration and implementation of
asylum measures. This is the case regarding the principle of the best
interests of the child (Article 3), which in the wording of the convention
should be a primary consideration; the principle of non-discrimination,
including on grounds of nationality (Article 2); the facilitation of
family reunification (Article 10); the right for the child to be consulted
on all matters that may affect him or her (Article 12); and the right
to special protection for refugee children or children seeking refugee
status (Article 22).
5. As they are without
their parents or legal or customary primary care-givers, separated children
seeking asylum should benefit from the prompt appointment of a legal
guardian to defend their interests and ensure their well-being and they
should also be placed in care and reception structures in keeping with
their age and maturity. By contrast, the legislation of Council of Europe
member states often does not provide for an appropriate system of guardianship
on behalf of foreign children. Even when an adequate legal framework
is in place, administrative delays pose a serious threat to the safety
of children, leaving them more exposed to a risk of trafficking or other
abuses. Furthermore, the detention of separated children in the asylum
process is a widespread practice in the vast majority of Council of Europe
member states, in open disregard of the obligation to provide care and
reception in structures suitable for children and in violation of Article 37
of the United Nations Convention on the Rights of the Child, which states
that detention shall only be used as a measure of last resort and for
the shortest appropriate period of time.
6. As regards the asylum
system, the Assembly regrets that separated children are often prevented
from having access to effective protection against refoulement,
due to the applicable legislation: at procedural level, in most Council
of Europe member states, children can be denied access to the territory
on the grounds that they travelled via a safe country where they could
have applied for asylum; their asylum application can be processed under
an admissibility or accelerated asylum procedure; they may not benefit
from the appointment of a legal representative; and at substantive level,
most Council of Europe member states do not recognise child-specific
forms of persecution, such as forced recruitment into armed forces, forced
child labour, female genital mutilation, forced marriages or forced pregnancies,
as persecution under the terms of the 1951 Geneva Convention relating
to the Status of Refugees.
7. Various specialised
agencies and bodies have adopted recommendations and guidelines to enhance
the protection of separated children seeking asylum, including the Committee
on the Rights of the Child, the United Nations High Commissioner for
Refugees (UNHCR) and the Separated Children in Europe Programme. The
Assembly believes that the Council of Europe should urge its member states
to comply with the standards recommended by such agencies and bodies.
8. Moreover, the Council
of Europe should complement these standards by adopting a single coherent
instrument on the issue of separated children seeking asylum. Such an
instrument should restate previous recommendations of the Assembly and
the Committee of Ministers regarding specific aspects affecting refugee
children and try to fill gaps in protection.
9. The Assembly therefore
recommends that the Committee of Ministers:
i. instruct one or
more of the specialised committees to conduct in-depth studies on access
to the territory and to the asylum procedure for separated children
seeking asylum in Council of Europe member states, as well as on the
availability of a system of legal guardianship;
ii. instruct one
or more of the specialised committees to conduct a study to review
the practice of member states as regards child-specific forms of persecution;
iii. draw up,
in co-operation and co-ordination with the UNHCR, the Save the Children
Alliance and the Separated Children in Europe Programme, a recommendation
urging member states to:
a. recognise
the primacy of the principle of the best interests of the child
in all asylum or immigration decisions, procedures, practices or
legislative measures affecting minors;
b. recognise
and fully implement in practice the principle of non-discrimination,
ensuring that all rights apply to all children on their territory
or within their jurisdiction without exception;
c. refrain
from refusing entry to their territories to separated children,
on any grounds;
d. amend
their legislation and remove any administrative obstacle so as
to ensure that separated children can have a legal guardian and
a legal representative appointed as a matter of urgency and not
later than two weeks of their presence coming to the knowledge
of the authorities;
e. ensure
that separated children are heard in the context of the asylum
procedure, either directly or through their legal guardian, and
that they are questioned in a manner in keeping with their age,
maturity and psychological situation;
f. amend
their legislation so as to exempt separated children from accelerated
or admissibility asylum procedures;
g.
recognise child-specific forms of persecution as persecution within
the meaning of the 1951 Geneva Convention relating to the Status
of Refugees;
h. grant
special or humanitarian residence permits to children who have
been subjected to child-specific forms of persecution and who are
not recognised as refugees;
i. facilitate
family reunification on behalf of separated children, as indicated
in Assembly Recommendation
1596 (2003) on the situation
of young migrants in Europe;
j. allow
the detention of separated children only as a last resort and for
the shortest possible time, as indicated in Recommendation Rec(2003)5 of
the Committee of Ministers to member states on measures of detention
of asylum seekers;
k. ensure
that the return of separated children to their country of origin
is implemented only if this is in the best interest of the child
and in compliance with the safeguards set out in Assembly Recommendations
1547 (2002) on expulsion
procedures in conformity with human rights and enforced with respect
for safety and dignity and Recommendation
1596 (2003) as mentioned above;
iv.
encourage the organisation and provision of specific training for
lawyers as well as officials and other professionals dealing with
separated children during the asylum procedure and in the context
of anti-trafficking policy and law;
v. urge member states
to comply with the guidelines adopted by the UNHCR, the Save the Children
Alliance and the Separated Children in Europe Programme, in particular
the revised Statement of Good Practice on Separated Children Seeking
Asylum;
vi. call on member
states to continue their co-operation with the UNHCR and the Separated
Children in Europe Programme in order to:
a. introduce
a uniform format for registering information on separated children
as regards age, gender and country of origin, with a view to facilitating
identification, family tracing and the comparability of information
collected;
b. introduce
common standards for assessing the age of separated children;
c. harmonise
the collection of statistical data relating to separated children
seeking asylum as regards gender, age, country of origin and decisions
on asylum and communicate such information to the UNHCR and other
relevant organisations.
1. Assembly
debate on
28 April 2005 (15th Sitting) (see Doc.
10477, report of the Committee
on Migration, Refugees and Population, rapporteur: Mr van Thijn).
Text adopted by the Assembly on 28 April 2005 (15th Sitting).
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