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Resolution 1810 (2011)
Unaccompanied children in Europe: issues of arrival, stay and return
1. There is a growing awareness of
the need to tackle the problems faced by unaccompanied migrant children
arriving and remaining in Europe. There may be up to 100 000 of
them, although there is little reliable data on their movement other
than statistics on asylum claims. These children, predominantly
boys of 14 to 17 years of age, arrive in Europe for multiple and
complex reasons. However, once in Europe, their chances of protection
and assistance vary considerably from one country to another, which
creates disparities in treatment and different interpretations of
the best interests of the child. In many cases these children are
in an extremely vulnerable position and face abuse, neglect and
can become victims of trafficking and criminal networks.
2. The Parliamentary Assembly recalls that by virtue of the United
Nations Convention on the Rights of the Child, which all member
states of the Council of Europe have ratified, there exists a special
duty of protection and assistance to all unaccompanied children,
irrespective of their nationality, immigration status or statelessness.
The way in which immigration and asylum rules affect these children
must be anchored in this obligation and perspective.
3. The Assembly has previously raised the above concerns in its Recommendation 1596 (2003) on
the situation of young migrants in Europe and Recommendation 1703 (2005) on protection
and assistance for separated children seeking asylum, which called, inter alia, for the recognition
of the binding character of laws protecting the best interests of
the child as a primary consideration in all actions, the harmonisation
of national laws on legal guardianship, and the establishment of
coherent and effective protection systems for children who are asylum
seekers or victims of trafficking. Regrettably, little progress
has been achieved in these fields.
4. In this regard, the Assembly commends the European Union on
its decision to make unaccompanied minors a priority policy issue
within its 2010-2014 Stockholm Programme and welcomes the adoption
of a European Union Action Plan on Unaccompanied Minors. It nevertheless
highlights the need to carry out the implementation of the action
plan in a way that is fully compliant with the United Nations Convention
on the Rights of the Child.
5. The Assembly believes that child protection rather than immigration
control should be the driving concern in how countries deal with
unaccompanied children. With this in mind, it establishes the following
set of 15 common principles, which it invites member states to observe
and work together to achieve:
5.1. unaccompanied
children must be treated first and foremost as children, not as
migrants;
5.2. the child’s best interests must be a primary consideration
in all actions regarding the child, regardless of the child’s migration
or residence status;
5.3. no child should be denied access to the territory or be
summarily turned back at the borders of a member state. Immediate
referral to assistance and care should be arranged by specialised
services with a view to identifying if the migrant is a minor, ascertaining
his or her individual circumstances and protection needs and ultimately
identifying a durable solution in the child’s best interest;
5.4. child victims of human trafficking should benefit from
special arrangements in terms of identification, reception and protection.
These should be adapted to their needs and ensure their protection
in line with the Council of Europe Conventions on Action against
Trafficking in Human Beings (CETS No. 197) and on the Protection
of Children against Sexual Exploitation and Sexual Abuse (CETS No.
201);
5.5. every unaccompanied child should be provided immediately
with a guardian mandated to safeguard his or her best interest.
The legal guardian should be independent and should have the necessary
expertise in the field of childcare. Every guardian should receive
regular training and undergo regular and independent check-ups/monitoring;
5.6. legal, social and psychological assistance should be provided
without delay to unaccompanied children. Children should be informed
immediately upon arrival or interception, individually and in a language
and form that they can understand, about their right to protection
and assistance, including their right to seek asylum or other forms
of international protection, and the necessary procedures and their
implications;
5.7. all interviews with an unaccompanied child concerning
his or her personal details and background should be conducted individually
by specialised and well-trained staff and in the presence of the
child’s guardian;
5.8. access to asylum and international protection procedures
must be made unconditionally available to all unaccompanied children.
A harmonised, child-sensitive asylum system needs to be established, including
procedures that take into consideration the additional difficulties
children may have in withstanding trauma and in expressing coherently
what has happened to them and their child-specific experiences of
persecution. Asylum applications by unaccompanied children should
be given priority and processed within the shortest appropriate
time frame, while allowing children sufficient time to understand
and prepare for the process. All unaccompanied children in asylum
proceedings must be represented by a lawyer in addition to a guardian,
provided free of charge by the state and be able to challenge before
a court decisions regarding their protection claims;
5.9. no detention of unaccompanied children on migration grounds
should be allowed. Detention should be replaced with appropriate
care arrangements, preferably foster care, with living conditions suitable
for children’s needs and for the appropriate period of time. Where
children are accommodated in centres, they must be separated from
adults;
5.10. age assessment should only be carried out if there are
reasonable doubts about a person being underage. The assessment
should be based on the presumption of minority, involve a multidisciplinary evaluation
by an independent authority over a period of time and not be based
exclusively on medical assessment. Examinations should only be carried
out with the consent of the child or his or her guardian. They should
not be intrusive and should comply with medical ethical standards.
The margin of error of medical and other examinations should be
clearly indicated and taken into account. If doubts remain that the
person may be underage, he or she should be granted the benefit
of the doubt. Assessment decisions should be subject to administrative
or judicial appeal;
5.11. the child’s views should be heard and given due weight
in all relevant procedures, in accordance with his or her age and
maturity. Administrative and judicial procedures within member states
should be conceived and applied in a child-friendly manner;
5.12. finding a durable solution should be the ultimate goal
from the first contact with the unaccompanied child. It should include
family tracing if requested by the child or his or her guardian
– where it is safe to do so and will not put family members in danger
– and an individualised best-interest assessment that examines all
options for durable solutions on an equal basis. A durable solution
may be the child’s integration into the host country, family reunification
in a third country, or return and reintegration in the country of
origin. An individual life project should be identified jointly
by the authorities, the legal guardian and the child concerned,
and monitored throughout the accomplishment of the project in line
with Committee of Ministers Recommendation CM/Rec(2007)9 on life
projects for unaccompanied migrant minors. Pending identification
of a durable solution, the child should benefit from legal residence
status in the host country. This should be valid throughout the
duration of the child’s personal life project conducted in the host
country, even if the project extends to the age of adulthood;
5.13. access to adequate accommodation, education, vocational
training and health care must be guaranteed to all unaccompanied
children, regardless of their migration status and under the same conditions
as to child nationals. Moreover, unaccompanied children should be
able to benefit from comprehensive child welfare programmes. These
should, where necessary, take into consideration their emotional
needs following traumatic experiences and should, beyond the immediate
psychological assistance to be provided (see paragraph 5.6), comprise
measures such as targeted educational assistance, placement in foster
families or specialised residential care, or integration assistance
for children with disabilities;
5.14. family reunification possibilities should be extended
beyond the country of origin and approached from a humanitarian
perspective exploring wider family links in the host country and
third countries, guided by the principle of the child’s best interest.
The Dublin II Regulation should only be applied to unaccompanied
children if transfer to a third country is in the child’s best interests;
5.15. the best interests of the child should be taken into account
in all steps leading to the return of the child to his or her country
of origin. Return is not an option if it risks leading to the violation
of the child’s fundamental human rights. If no parents or members
of the extended family are identified, return should only take place
with advance secure, concrete, and adequate care and reintegration
arrangements in the country of origin. Return to institutional care
should not in and of itself be viewed as a durable solution. A professional
child-protection body should conduct the assessment of return conditions.
A follow-up plan should be established in order to ascertain that
the protection of the child is guaranteed following the return.
Non-rights-based arguments such as those relating to general migration
control, must not override best-interest consideration in return
decisions. Returns to countries where the child’s security, protection
– including against refoulement –
and welfare cannot be guaranteed, must not be envisaged. Children
in return proceedings must be represented by lawyers in addition
to guardians. They must be granted access to the return case file
and be able to challenge return decisions before a court; their
appeals must have suspensive effect on the return.
6. The Assembly calls upon the European Union to, in particular:
6.1. promote full implementation
of the European Union Action Plan on Unaccompanied Minors, in accordance
with the United Nations Convention on the Rights of the Child;
6.2. consider proposing new legislative standards to close
existing protection gaps in European Union law for all unaccompanied
children, irrespective of whether they seek asylum;
6.3. establish a harmonised method for gathering relevant information
on unaccompanied children Europe-wide, to enable an accurate comparison
at European level, while ensuring that personal data is protected;
and to support national independent institutions capable of collecting
the data and creating a suitable resource centre regarding all areas
touching upon the situation of unaccompanied children;
6.4. adopt and implement common standards and procedural safeguards
on guardianship and legal aid for all unaccompanied children to
ensure that their interests and protection needs are safeguarded throughout
all administrative and judicial procedures;
6.5. support the adoption of a common protocol for carrying
out age assessments in accordance with ethical, medical and legal
principles in order to balance the current divergent approaches
and practices;
6.6. continue to work towards the creation of a harmonised
system of asylum for unaccompanied minors within the framework of
the revised Asylum Directive and a harmonised system for assisting
and protecting trafficked children within the framework of the European
Union asylum and trafficking instruments which are currently under
revision; and to ensure that all European Union member states comply
with their obligations under European Union law with regard to unaccompanied
children;
6.7. establish improved transnational mechanisms for dealing
with child-protection concerns as unaccompanied children move across
Europe, including when they disappear from reception centres;
6.8. refrain from supporting or financing the construction
of reception facilities for the purpose of deporting children to
countries of origin which do not have proper functioning child-protection
systems providing sufficient safeguards and operating in a transparent
fashion; ensure that in no case would the existence of centres pre-empt
a case-by-case decision as to whether return is indeed in the child’s
best interest;
6.9. reinforce support to countries of origin in their efforts
to promote child-protection systems and life opportunities for all
children in order to reduce the risk of unsafe and unnecessary migration;
6.10. ensure co-operation with countries of origin on the assessment
of the child’s circumstances, with a view to finding durable solutions
for children on a case-by-case basis;
6.11. promote good practices throughout Europe on the return
process, including co-operation with third countries, to ensure
proper care and custodial arrangements and reintegration support;
6.12. ensure proper integration of unaccompanied children in
the host country where this has been considered to be in the child’s
best interest.