Doc. 9645

13 January 2002

Situation of young migrants in Europe

Report

Committee on migration, refugees and demography

Rapporteur: Mr Luis Yáńez-Barnuevo, Spain, Socialist Group

Summary

Young people are amongst the main actors of migration. They leave their countries of origin in search of better economic opportunities, to study or join their families. Others are victims of forced migration and flee from persecution, human rights violations, war or extreme poverty. Some of them use legal channels of migration, others have recourse to smugglers’ networks. A number of them, including children, are seduced by false promises of a better life but fall prey to abuse and exploitation at the hands of unscrupulous traffickers. Some young migrants have never themselves migrated: they were born to foreign parents in the host country and have never seen their country of origin.

Today, the challenge for European society is how to ensure that these young people are an element of social cohesion rather than an element of disruption. To this end the Council of Europe, in co-operation with other relevant agencies and institutions, should elaborate a coherent and multidisciplinary long-term policy to give young migrants the instruments to participate in society, be protected against discrimination and exploitation, and be cared for and assisted in keeping with their age and needs.

The present report develops the work of the Hearing on the specific situation of young migrants (European Youth Centre of Budapest, 15-16 November 2001), where 30 young people from 27 European countries shared their experience of migration with members of the Sub-Committee on Migration of the Committee on Migration, Refugees and Demography and voiced their unease and concern at current policies - or absence of policies - applying to their situation.

I.       Draft recommendation

1.       Young migrants represent a varied and heterogeneous group. They include children, young women and young men who have fallen prey to human traffickers or who have been smuggled into a country in the hope of escaping poverty, persecution or a situation of generalised violence; young people who have entered European countries through legal channels for study, work or family reunion and second-generation migrants who are born in the host country. Many of them come from non-European countries; but many others are Europeans who move, legally or illegally, from one member state to another. They are immigrants for some states and emigrants or returning emigrants for others.

2.       Bearing in mind the activities of the Council of Europe in the field of migration, as well as the numerous activities addressing the situation of the youth in Europe, and namely those conducted by the Directorate for Youth and Sport, the Assembly recalls the works of the Hearing on the specific situation of young migrants (European Youth Centre of Budapest, 15-16 November 2001), where 30 young people from 27 European countries shared their experience of migration with members of the sub-Committee on Migration of the Committee on Migration, Refugees and Demography and voiced their unease and concern at current policies, or absence of policies, applying to their situation.

3.       The Assembly is convinced that the situation of young migrants in Europe requires urgent action on the part of the Council of Europe, in co-operation with the relevant international organisations, to address the reasons why they want or are forced to emigrate, their rights and living conditions as immigrants, and finally their rights and needs when, and if, they return to their countries of origin.

4.       The Assembly therefore recommends that the Committee of Ministers:

i.       in consultation with relevant international agencies such as UNICEF, International Organisation for Migration (IOM) and the United Nations High Commissioner for Refugees (UNHCR) – and in compliance with the mandate of these agencies - initiate a long-term multidisciplinary programme on young migrants in Europe with the aim of fostering social cohesion and participation of young migrants through the improvement of their legal status, the support of appropriate integration and reintegration projects, the development of educational materials and programmes and the organisation of various initiatives designed to meet the needs of young migrants and highlighting their positive contribution to the strengthening of democratic society;

ii.       include in the work programme of the General Directorate on Education, Culture and Heritage, Youth and Sport regular meetings – in the form of seminars, hearings, conferences and others – on the topic of young migrants, with the participation of young migrants;

iii.       encourage member states to submit projects to the Council of Europe Development Bank with a view to funding or co-funding integration projects for young migrants in host countries, as well as reintegration projects for young migrants returning to their countries of origin, in particular young victims of trafficking;

iv.       initiate a study to review the implementation of Recommendation (2000)15 of the Committee of Ministers concerning the security of residence of long-term migrants and Recommendation (2002)4 on the legal status of persons admitted for family reunification, with special regard to the protection against expulsion of migrants who were born or raised in Council of Europe member states or who are minors in age;

v.       with reference to the current preparation of a report on conditions for the acquisition and loss of nationality by its Committee of Experts on Nationality (CJ-NA), ask its relevant committees to initiate a study on the use of nationality law as an instrument to foster social cohesion and the integration of young migrants and include this issue among those to be addressed during the next European Conference on Nationality;

vi.       initiate a feasibility study on the harmonisation of national laws on legal guardianship of separated children as defined in sub-paragraph 7 iv. of the present recommendation, with a view to the elaboration of an international binding instrument including the following guidelines:

      a. all Council of Europe member states should adopt a legal framework for the appointment of a legal guardian for separated children who are under their jurisdiction, irrespective of whether they apply for asylum or not;

b. the legal guardian should be individual and chosen among people or institutions of proven reliability and having an understanding of the special and cultural needs of separated children as well as of the institutions of the host country;

c. the appointment of the legal guardian should take place as a matter of urgency, and in any case within two weeks of the presence of the child coming to the knowledge of the authorities;

d. the legal guardian should ensure that all decisions affecting the child are taken in his/her best interests, that the child has suitable legal representation to deal with his/her legal status and that s/he receives suitable care, accommodation, education, language support and health care;

      e. the legal guardian should also act as a link between the child and various service-providers and advocate on behalf of the child where necessary.

5.       Furthermore, with a view to fostering participation and social cohesion, the Assembly recommends that the Committee of Minister elaborate measures addressed to member states and aiming at assisting member states to:

i.       grant the right to vote and stand in local elections to migrants having settled legally on their territories and having resided there for at least three years;

ii.       adopt appropriate legislation to facilitate acquisition of nationality for migrants having resided legally in the country on a long-term basis;

iii.       facilitate the acquisition of nationality for children born on their territories to legally residing foreign parents.

iv.       establish or promote the establishment of integration programmes according to the following guidelines:

a. states should use all the available instruments at their disposal to fund or support the funding of integration programmes, and in particular the loans of the Council of Europe Development Bank and other international agencies;

b. states and local authorities should:

c. participation in integration programmes should be voluntary, even if states and local authorities could provide financial inducements to ensure larger attendance;

d. integration programmes should include language tuition and vocational guidance and/or training;

e. integration programmes should be based on an individual assessment of integration needs of each beneficiary;

f. in the absence of specific integration programmes devoted to them, young migrants with dependants, especially women, should have priority in the access to ordinary integration programmes;

g. integration programmes should aim at the personal development of beneficiaries, providing them with instruments to participate in all aspects of society, while preserving their language, culture and national identity, respecting the European Convention on Human Rights.

6.       With a view to making effective use of education as an instrument to foster equality, multiculturalism and mutual understanding, the Assembly also recommends that the Committee of Ministers elaborate measures addressed to member states and aiming at:

i.       ensuring unimpeded access to compulsory education for migrant children, irrespective of their legal status or the legal status of their parents;

ii.       ensuring access to compulsory education for migrants who are under the age of 18 and who have not accomplished compulsory education in other countries, irrespective of their legal status or the legal status of their parents;

iii.       responding to the special needs of migrant students integrating the ordinary curriculum with additional classes focusing on tuition in the language of the host country and the study of its society and culture;

iv.       investing additional resources in the employment in education institutions of specialised staff such as psychologists, pedagogues, social workers and cultural mediators and provide them, as well as teachers, with appropriate training to deal with young migrants;

v.       ensuring that the content of school programmes and textbooks does not contain any national or ethnic stereotype and does not convey any discriminatory or racist interpretation of the history, culture and society of foreign countries or communities;

vi.       funding and supporting extra-curricula activities aimed at highlighting the value of the culture and civilisation of migrants’ communities and their countries of origin;

vii.       supporting initiatives taken at local level to foster contacts between immigrant parents, the school and the community.

7.       The Assembly further recommends that the Committee of Ministers include in its working programme activities aimed at assisting member states to:

i.       introduce in every domestic law or policy measure affecting children a specific mention of the situation of migrant children;

ii.       give primacy and binding character to the principle of the best interests of the child, making this explicit in every law, regulation or administrative guideline concerning migration and/or asylum;

iii.       refrain from detaining minors of age exclusively on immigration grounds, and subsequently provide for alternative and adequate accommodation;

iv.       introduce in domestic law and policy the definition of "separated children" as "children under 18 years of age who are outside their country of origin and separated from both parents or their legal/customary primary caregivers", and afford them an effective system of care and protection, consistent with the present recommendation as well as the recommendations of the Separated Children in Europe Programme, established by the UNHCR and some members of the International Save the Children Alliance;

v.       ensure that the definition of separated children, and the special care and protection to which they are entitled, is interpreted and applied in a uniform manner throughout their territories, even when the competence in this matter falls under the responsibility of federate, regional or local authorities;

vi.       introduce legal provisions to allow the placement of separated children, including those who do not apply for asylum, in reception centres or care institutions appropriate to their needs, invest in the creation of such centres and institutions where necessary and ensure that separated children benefit from the same level of assistance and protection which is available for children having the nationality of the host country;

vii.       facilitate family reunification of separated children with their parents in other member states, even when parents do not have permanent residence status or are in the asylum procedure, in compliance with the principle of the best interests of the child;

viii.       consider favourably requests for family reunification between separated children and family members other than parents who have a legal title to reside in a member state, are over 18 years of age and would be willing and able to provide care;

ix.       facilitate family reunification of separated young people with mental or physical disabilities, including those who are over 18 years of age, with their parents or other adult family members upon whom they were dependant in the country of origin or the country of habitual residence and who are legally residing in another member state;

x.       in any ordinary or accelerated procedure implying the return of separated children to their countries of origin or any other country, including procedures of non-admission at the border, comply with the following guidelines:

a. states should make sure that return is not in breach of their international obligations under the 1951 Geneva Convention relating to the status of refugees and its 1967 Protocol or the European Convention on Human Rights and other relevant instruments;

b. return should not be possible before a legal guardian for the child has been appointed;

c. before taking the decision to return a separated child, states should demand and take into consideration the opinion of the child’s legal guardian as to whether return would be in the best interests of the child;

d. return should be conditional upon the findings of a careful assessment on the family situation that the child would find upon return and whether the child’s family would be able to provide appropriate care. In the absence of parents or other family members, the suitability of child-care agencies in the country of return should be investigated. The assessment should be conducted by a professional and independent organisation or person and should be objective, non-political and aimed at ensuring the respect of the principle of the best interests of the child;

e. prior to return, states should obtain an explicit and formal undertaking from the child’s parents, relatives, other adult carer or would-be child-care agency in the country of return that they would provide immediate and long-term care upon the child’s arrival;

f. the decision to return a separated child should be motivated and notified to the child and his/her legal guardian in writing, together with information on how to appeal against it;

g. the child and/or his/her legal guardian should have the right to lodge an appeal before a court against the decision to return. Such an appeal should have suspensive effect and be extended to the lawfulness and the merits of the decision;

h. during return the child should be accompanied and treated in a manner in keeping with his/her age;

i. the well-being of the child following return should be monitored by appropriate authorities or agencies on the spot, who should liaise with and report to the authorities of the country from which the child has been returned;

      j. migrants who arrived in a host country as separated children but who have reached the age of 18 at the time of return should be treated as vulnerable cases and consulted on the conditions required for a successful reintegration into their country of origin.

8.       As to the issue of trafficking in children and young people, the Assembly recommends that the Committee of Ministers include in its working programme activities aimed at assisting member states to:

i.       sign and ratify the existing international instruments applicable to this matter, and in particular the Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementary to the Convention against Transnational Organised Crime, the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, and the International Labour Organisation Convention No. 182 concerning the prohibition and immediate action for the elimination of all the worst forms of child labour;

ii.       establish effective protection regimes for child and young victims of trafficking and ensure the availability of psychological counselling and assistance upon demand of the victims, their legal guardians or care institutions;

iii.       devise and implement appropriate programmes to meet care and assistance needs of traumatised child and young victims of trafficking in host countries;

iv.       devise and implement appropriate reintegration programmes for young victims of trafficking returning to their countries of origin;

v.       allocate additional financial resources to prevention activities in the countries of origin of potential child and young victims of trafficking and support or conduct information campaigns in schools and other places of socialisation or care, including orphanages, especially in areas at risk;

vi.       support the initiatives of the IOM, the UNHCR and other agencies – within the limits of their mandates - to train police officers, border police and immigration officials on the international legal framework applying to trafficking, with a particular attention to the assistance and protection needs of child and young victims.

9.       Finally, also recalling Assembly Recommendation 1547 (2002) on expulsion procedures in conformity with human rights and enforced with respect for safety and dignity, the Assembly asks the Commissioner for Human Rights to conduct an investigation on the situation of separated children in Council of Europe member states and report to the Assembly and the Committee of Ministers.

II.       Explanatory memorandum by Mr Luis Yáńez-Barnuevo

1.       Introduction

1.       Young migrants in Europe represent a varied and heterogeneous group, including children, young women and young men who have fallen prey of human traffickers or have been smuggled into a country in the hope of escaping poverty, persecution or a situation of generalised violence; young people who have entered European countries through legal channels for study, work or family reunion and second-generation immigrants who are born in the host country.

2.       From the perspective of the Council of Europe it would be wrong to call them ‘young immigrants‘. Many of them come from non-European countries; but many others are Europeans who move, legally or illegally, from one member state to another. They are immigrants for some states and emigrants or returning emigrants for others. The concern and the response of the Parliamentary Assembly and the Council of Europe as a whole should address the reasons why they want to emigrate, their rights and living conditions during their stay in a Council of Europe member state, their rights and needs when, and if, they return to their countries of origin.

3.       Young migrants are young in an ageing society and they should be, like their peers, the voters, the opinion-makers, the politicians and the workforce of tomorrow. They are already part of our society even if the media or some political parties portray them as an external element, and should be treated as an asset and a potential source of enrichment. They should have the opportunity to voice their concerns, explain their situation and express their hopes for the future.

4.       For these reasons, in November 2001 the Sub-Committee on Migration of the Committee on Migration, Refugees and Demography and the European Youth Centre of Budapest decided to organise a pan-European debate with the participation of some 30 young people from 27 European countries having first-hand knowledge or personal experience of migration, together with parliamentarians and representatives of international organisations working in this field.

5.       The very idea of organising this hearing was a novelty: it was the first of its kind on migration organised by the Council of Europe. The issues addressed reflected the main concerns on the agenda of national and international authorities, namely participation and social integration, education and training, the situation of separated children, including those seeking asylum, and trafficking in human beings.

6.       This report examines in greater detail the questions discussed at the hearing on the specific situation of young migrants. It reflects the structure of the event and endorses many of the ideas expressed on that occasion.

2.       Participation and integration of young migrants

7.       The question of the participation and integration of migrants has always been of particular interest to the Council of Europe, as have youth policies. There cannot be social cohesion in Europe if a large part of the population, and especially young people, does not share a sense of belonging to the European society.

8.       The events of 11 September have increased the pre-existing trend of governments to focus the migration debate on border security issues, in national and international fora. This approach tends to overlook the fact that for hundreds of immigrants illegally crossing the border into a country there are thousands of legal immigrants whose rights to participate fully in society should be respected and guaranteed. It is not possible to reduce migration policy to a matter of immigration control or even migration management: any such policy should always be associated with the adoption of an appropriate legal framework to promote social cohesion and highlight the value of diversity and multiculturalism.

9.       As people of different cultures interact with each other, they face different belief systems, values, customs, behaviours and social relations. Social cohesion should involve mutual understanding and adaptation on the part of both the immigrant and the receiving population. Young people can be an important catalyst of the social cohesion process since they find themselves at the crossing between two cultures: the culture of the country of origin, inherited from their parents, and the culture of the host country, to which they are exposed in everyday life outside the home.

10.       Young migrants, however, are confronted with several difficulties when trying to play an active role in society. Some of them are due to the lack of an appropriate anti-discrimination legal framework or to racist and discriminatory attitudes of the population, the administration or the providers of services. At other times, exclusion is due to inadequate qualifications or professional experience, or lack of knowledge of the language and labour market of the host country. Your Rapporteur believes that Council of Europe member states should take prompt action to improve this situation, enforcing an efficient anti-discrimination framework and providing young migrants with appropriate instruments to know the country where they are.

a.       Compulsory versus voluntary integration programmes

11.       Despite a number of differences, all integration programmes currently in place have in common a prominent role for local authorities and municipalities in their implementation, within a general framework decided at national level. In addition, in most Council of Europe member states the voluntary sector plays an important role, in close co-operation with the local authorities.

12.       To simplify, there are two extreme models of integration programmes: one in which programmes are available on a voluntary basis; the other in which they are compulsory, especially for newcomers, the sanction for not attending being a reduction of social benefits or a fine.

13.       In the Netherlands the latter system has been in place since the entry into force of the ‘Newcomer Integration Act’ in 1998. Under this legislation, newly arrived immigrants aged 16 years or older, settling in the Netherlands for the first time with a non-temporary goal, have to attend an interview within six weeks of arriving in a municipality or receiving a residence permit. This interview has the aim of establishing to what extent the newcomer needs to attend an integration programme. Within four months of this individual assessment the newcomer is required to enrol in an educational institution where, depending on his/her needs, s/he may follow courses of Dutch as a second language, social orientation and vocational guidance, for a total number of approximately 600 hours over a maximum period of two years. In addition the newcomer receives general coaching and social counselling, also on an individual basis. Immigrants who fail to meet their obligations are liable to a reduction of benefit payments or to fines if they are not in receipt of welfare benefits.1

14.       Evaluation studies on this integration programmes have showed difficulties in its implementation: a number of municipalities had problems with organising the co-operation of the many organisations and agencies involved. The disappointing results were also caused by the fact that municipalities could rarely provide a tailor-made programme for the heterogeneous group of newcomers, and by the high rates of drop out and absenteeism. Besides, municipalities failed to impose the sanctions foreseen under the Act, among other reasons because they viewed them as an ineffective means of ensuring compliance2.

15.       Half-way between the compulsory and the voluntary model is Sweden, where integration courses are compulsory only for those who are in receipt of social benefits. Since 1995 all new immigrants over the age of 16 have been entitled to participate in the programme, which they can do within three years from arrival. The programme offers Swedish lessons oriented to everyday life and tries to enhance understanding of Swedish society and relevant labour market sectors. In addition, contact is established during the integration course between participants and potential employers. No sanctions are inflicted for non-attendance.

16.       Another similar model is offered by Finland, where attendance of integration programmes is not compulsory, but sanctions can be applied to those who do not attend. The relevant legal framework is provided by a piece of legislation which entered into force in 19993. The objective of this law is "to promote the integration, equality and freedom of choice of immigrants, through measures which help them to acquire the essential knowledge and skills they need to function in society" (section 1). As in Sweden, participation in the integration programme in Finland is not an obligation but a right: every immigrant who lives permanently in Finland, is unemployed and needs to rely on social benefits is entitled to an integration plan drawn up in co-operation with the municipality and the employment and economic development centre. This plan covers such areas as language teaching, vocational training and integration in the local community. The refusal of the migrant to participate in the compilation of an integration plan, or the refusal to participate in a reasonable measure agreed upon in the integration plan will provoke a reduction of the social benefits s/he receives.

17.       In Germany, in December 2000, the Federal Government’s Commissioner for Foreigners’ Issues presented a comprehensive project for a new integration model: in principle, all migrants, with the exception of those having temporary residence, should be entitled to participate. They would conclude a contract entitling them to attend a language and integration course within the first three years of their arrival. On receiving their residence permits, migrants should be informed about the integration programme and receive "welcome integration vouchers for new immigrants to Germany". After an initial advisory session with the local authority, a curriculum should be compiled in agreement with the migrant, corresponding to his/her level of language proficiency and education. Integration vouchers for 600 lessons should be handed out to facilitate flexible attendance on the course. During a final advisory session at the end of the course, the education authorities and the employment office should assist the immigrant in developing his/her personal and professional prospects. This model does not provide for sanctions in case of non-compliance.

b.        Proposed minimum standards for integration programmes

18.       Your Rapporteur understands that behind the choice to introduce compulsory integration programmes there may be the willingness to ensure that migrants acquire the skills necessary to function in the society where they live, but cannot agree with this policy. Participation in integration programmes should be a right to which migrants are entitled and which they may or may not exercise. states and local authorities, of course, should try to encourage the largest participation in these programmes, if necessary with financial inducements.

19.       All the models presented above are based on an individual assessment of the integration needs of each migrant, and their practical feasibility depends on the number of beneficiaries and the financial and staff resources available. To give an idea of the financial burden involved, the estimated cost per participant of the German model would be 1,056 Euros per year; in Sweden, for a period of two years, the state provides the local authorities with a maximum of 15,338 euros for every new adult immigrant who lives in the community and a maximum of 9, 203 per child. After this period, however, local authorities bear all the further integration costs incurred, if any; in the Netherlands local authorities receive 5,445 euros from the state for each participant. In 2000 the national budget for the integration programme in Germany was 133 million euros, for an estimated 22,500 beneficiaries4.

20.       It would be unreasonable to expect that all Council of Europe member states devote the same amount of resources to the implementation of integration programmes, given the disparity of financial resources and the different proportion amongst their immigrant populations. Your Rapporteur, however, would like to indicate some minimum standards that should be common to all integration programmes:

i.       States should use all the available instruments at their disposal to fund or support the funding of integration programmes, and in particular the loans of the Council of Europe Development Bank and other international agencies;

ii.       States and local authorities should allocate resources to employ sufficient staff for the implementation of integration programmes and provide them with adequate training;

iii.       States and local authorities should monitor the implementation of integration programmes and conduct periodical evaluation studies;

iv.       States and local authorities should ensure the participation of migrants in the elaboration, implementation and evaluation of integration programmes;

v.       integration programmes should include language tuition and vocational guidance and/or training;

vi.       an individual assessment of integration needs of each beneficiary is fundamental to avoid discrimination on the basis of nationality or ethnic origin;

vii.       States and local authorities should devise special integration programmes addressed to young migrants, not only newly arrived;

viii.       in the absence of specific integration programmes devoted to them, young migrants with dependants, especially women, should have priority in the access to ordinary integration programmes;

ix.       under no circumstances should the participation in integration programmes be conceived as a form of acculturisation or assimilation to the indigenous community: integration of migrants should mean personal development aimed at participation in all aspects of society, while preserving if they so wish their language and culture. States and local authorities, therefore, should fund and support activities aimed at highlighting the value of the culture and civilisation of immigrant communities and countries of origin, possibly in cooperation with those concerned, in the form of exhibitions, conferences, language courses, round tables and other initiatives.

c. Participation, security of residence, citizenship and political rights

21.       Political participation expresses itself in several ways: participating in the life of the community, expressing views and opinions, voting and standing as candidates in elections, holding citizenship, even working in the public sector. Not all these possibilities are open to young migrants.

22.       In recent years, in European countries where the number of migrants is on the rise, the public and policy debate on naturalisation and voting rights has intensified.

23.       Non-EU migrants holding a legal residence title already enjoy the right to vote in local elections in a number of Council of Europe member states, including Denmark, Finland, Ireland, Lithuania, the Netherlands, Norway and Sweden. The pre-condition for the exercise of this right is residence, varying between six months (Ireland) to 5 years (Netherlands). EU-migrants, instead, in whatever other EU member state they reside, have the right to vote and stand in local elections5.

24.       The issue of voting rights for migrants is one of the most controversial in the current political debate. The case of Belgium is exemplary: in 1998 an amendment to the Constitution recognised the right of migrants to vote in local elections, leaving it to an ordinary law to specify the conditions for the exercise of this right. To date this ordinary law has not yet been adopted due to a lack of agreement in Parliament. Some political forces believe that granting effective voting rights to migrants now would shift the vote of the non-migrant population towards the extreme right. Their argument is that migrants can have the right to vote in local elections, as well as in regional and federal elections, provided that they become Belgian citizens6.

25.       Your Rapporteur believes that there should be a link between the right to vote in local elections and the fact of living legally in a community, for a certain time, paying taxes and contributing to social security: it is a contradiction to establish policies to foster social cohesion and then leave a part of this society unable to express their views.

26.       The Rapporteur, therefore, calls on Council of Europe member states to grant voting rights to all foreign residents who have legally settled in their countries, in compliance with Recommendation 76 (2000) on the participation of foreign residents in local public life7, Recommendation 115 (2002) on the participation of foreign residents in local life: consultative bodies8 of the Congress of Local and Regional Authorities of Europe, Assembly Recommendation 1500 (2001) on participation of immigrants and foreign residents in political life in Council of Europe member states9 and the Convention on the Participation of Foreigners in Public Life at Local Level (5 February 1992)10.

27.       As for the length of legal residence that member states should require as a pre-condition to the entitlement to voting rights, your Rapporteur wishes to reiterate that such a period should not exceed three years, in conformity with the above mentioned Assembly Recommendation 1500 (2001) on participation of immigrants and foreign residents in political life in Council of Europe member states.

28.       Your Rapporteur does not believe that the acquisition of nationality should be a pre-condition for the entitlement to political rights.

29.       Acquiring another nationality may bring with it important practical and emotional implications: not all countries admit dual nationality, so by acquiring the citizenship of the country where they live many migrants would lose the nationality of their country of origin, together with a number of attached rights. Emotionally, the acquisition of another nationality may provoke a feeling of separation from the country of origin, with its culture and its family ties.

30.       In a democratic society, migrants should be accepted as migrants, as Turks in Belgium, as Bangladeshi in the United Kingdom, as Russians in France. The acquisition of citizenship should not be forced on migrants as the only way to participate in society.

31.       By contrast, citizenship law may be an important part of the integration strategy of a country when used with flexibility: for those migrants who want to become citizens of the country where they live, there should be channels to facilitate the acquisition of citizenship through length of residence (naturalisation) or birth in the territory of the host country (ius soli).

32.       Germany has recently introduced an important change of legislation in this direction. According to the legal situation which applied until the end of 1999, German nationality was essentially acquired as a consequence of descent from one German parent. Since 1 January 2000, children of foreign parents automatically acquire German nationality at birth, if one of the parents has been legally and habitually residing in Germany for eight years and has the right to unlimited residence or has held an unlimited residence permit for three years. Children who have acquired German nationality on the basis of the so-called ius soli principle have to choose between German nationality and the foreign nationality of their parents once they reach the age of 18. If they opt for German nationality they are required to renounce their foreign nationality.

33.       The introduction of ius soli in Germany has put an end to the practice of treating generations of people as foreigners with regard to their legal status, even though they have long become part of German society. It is sufficient to consider that at the end of 2000, the number of people of foreign nationality living in Germany was approximately 7.3 million, approximately 64% of whom had been living in Germany for more than 8 years, 48% for more than ten years and 32% for more than twenty years. Over two-thirds of the foreign children and young people living in Germany were born in Germany11.

34.       The example of Germany should be followed by other Council of Europe member states. There are thousands of young people in Europe, including second generation migrants who have never seen the country of origin of their parents, who are excluded from the citizenship of the country where they were born, raised and where they live.

35.       Besides, it should be borne in mind that citizenship does not only confer the right to full political rights, but also the right to reside indefinitely in a country and the consequent right not to be expelled. There have been a number of cases in Europe where second generation migrants have been returned to the country of origin of their parents, which they had never seen and whose language they do not speak. This practice is not acceptable. Your Rapporteur is aware that the Committee of Ministers has addressed the issue of expulsion of long-term migrants who were born or raised in host countries or are minors of age12. Your Rapporteur wonders how these recommendations have been implemented and suggests that the Committee of Ministers initiate a study to ascertain this.

36.       Finally, a high number of positions in the public administration are open only to citizens and, for EU countries, to EU citizens. As long as second generation migrants do not have access to these positions they will feel that they are excluded from society, and in particular from institutions dealing daily with migrants, foreigners and minorities, in a decision-making or repressive capacity13.

37.       Recalling Assembly Recommendation 1500 (2001) on participation of immigrants and foreign residents in political life in Council of Europe member states14, your Rapporteur wishes to reiterate that member states should adopt appropriate legislation to facilitate acquisition of citizenship for immigrants having resided legally in the country on a long-term basis; states should also facilitate the acquisition of citizenship for children born in their territory to legally residing foreign parents15. Your Rapporteur is aware that the Committee on Experts on Nationality (CJ-NA) of the Council of Europe is currently working on a report on conditions for the acquisition and loss of nationality16. Your Rapporteur believes that it would be important to consider, in the preparation of such a report, the advantages of the utilisation of nationality law in the context of a migration policy aimed at fostering social cohesion, and recommends the Committee of Ministers to ask its relevant Committees to address this aspect.

38.       Similarly, recalling Recommendation 115 (2002) of the Congress of Local and Regional Authorities of Europe and the Conclusions of the Hearing on ‘the participation of foreign residents in public life at local level – consultative bodies, Stuttgart (Germany), 14 December 2001, your Rapporteur invites member states to take action to enhance the participation of young migrants in consultative bodies at local level, so that they can contribute more actively to the life of the community where they live, acquire a better understanding of the democratic method and engage in intercultural dialogue.

3.       Education and training

39.       Education has a fundamental role as an instrument of social cohesion. School is the meeting place for children and youth of different social backgrounds, cultures and nationalities. It is the place where young people develop the skills to be used in society and the workplace.

40.       A brief overview of education systems in relation to migration shows that while curricula are decided nationwide, local schools and school authorities support and devise specific programmes, for inclusion in the education curricula or extra-curricula, so as to respond better to the special needs of migrant pupils. This activity is often conducted in co-operation with local authorities and the voluntary sector. Your Rapporteur believes that it is important to encourage a local approach because different regions within the same country may host different migrant communities or a different proportion of migrant population, and so have different needs.

a.       Access to education

41.       Access to compulsory education for children is a human right codified in various international instruments including the UN Convention on the rights of the child17.

42.       Migrant children, however, often face practical obstacles to school attendance: sometimes their parents lack a legal title to stay in the country, and therefore fear that sending children to school would make their presence known to the authorities and would put them at risk of being returned. Romany families are often reluctant to send their children to school. Sometimes this depends on what parents expect from their children’s education. If they believe that better education will not give their children better opportunities to find a job, they will not feel motivated to send them to school.

43.       In general terms, school attendance of migrant children is higher in compulsory education and falls drastically in secondary education. In some migrant groups, parents consider schooling of girls less important than schooling of boys, even in compulsory education. School and local authorities should intervene promptly in these cases, and ensure that access to compulsory education is not impeded by gender discrimination, even if originating in the families of young migrants.

44.       Additional obstacles to access to education stem from the lack of recognition of previous school and education certificates, especially with reference to access to university studies. Whereas the European Union and the Council of Europe devote substantial resources to the question of mutual recognition of diplomas and academic qualifications issued in their member states, migrants from non-member states are not affected unless bilateral agreements have been concluded between their countries of origin and host countries.

45.       A further problem affects minors who arrive in a country at an age when compulsory education is generally over but who have not yet completed compulsory education in their countries of origin:15-18 year olds find it very difficult to be admitted to compulsory education courses in these circumstances.

b.       Meeting educational needs of young migrants

46.       Students with a migrant background generally have a lower level of school achievement than their peers. In addition, a higher proportion of them are early school-leavers. In the Netherlands, young Turks and Moroccans participate to a lesser extent in education than their Dutch peers. Immigrant pupils are older than Dutch pupils in the same school year. Their level of attainment is lower, they tend to higher absenteeism and are often early school-leavers. In Switzerland far more foreign young people (23%) do not enter education and training at the upper secondary level than Swiss young people (8%). In Germany, 17,4% of all school leavers of migrant origin leave school without any formal qualifications (Germans 7,5%). In the United Kingdom in 1993, a quarter of male migrants and less than a third of females of working age had no educational qualifications, while over half of the men and three fifths of the women among the Pakistani and Bangladeshi community were without qualifications18. In Italy, according to figures for 1998-1999, 98,8% of primary school students passed their grade but this proportion fell to 95,5% for migrant children. The difference was even more evident in "Scuola Media" (from 11 to 13 years old), where 94,8% of students passed their grade compared to only 84% of migrant children19.

47.       Studies show that the low level of school achievement of young migrants is mainly due to poor knowledge of the language of the host country. Other causes are that they generally come from economically disadvantaged families and that their parents themselves have limited educational backgrounds.

48.       In order to support migrant children and youth in their educational needs, most countries provide means for special schooling. Special education may be organised in separate schools, independently from regular schools, or in separate classes within regular schools or even fully integrated in mainstream education. In most non-EU countries integrated and separate schooling exists side by side. In Belgium (French community), Germany, Bulgaria and Romania special education is mainly separate; in Italy is general.

49.       Your Rapporteur believes that separate schooling may have a stigmatising effect on the pupils concerned, which reduces rather than improves their chances for social integration and participation. Member states should respond to the needs of migrant students through the general school system or with additional courses which integrate the ordinary curriculum. However, additional investment is necessary in the training of teachers, the support of additional staff such as psychologists, pedagogues and social workers, the sensitisation of parents, special facilities in ordinary schools and the training and employment of cultural mediators.

50.       Poor knowledge of the language of the host country is for migrant children and young people a major cause of not attaining good school results and of experiencing a sense of exclusion. Most Council of Europe member states offer language classes in addition to the ordinary curricula, but these classes do not seem to be very effective. In the Netherlands, where the introduction of additional language courses for migrant students goes back to the early ‘90s, various measures have been tried to increase the effectiveness of language training. Among these measures are the reduction of the number of students, language tuition at home and the provision of language training to migrant parents. A recent proposal suggests to lower the age of compulsory schooling to 4 years, to enable migrant children to catch up with the level of language proficiency of their non-migrant peers as early as possible20. This proposal also aims at increasing the socialisation of migrant children, because only a very low proportion of them frequents nurseries.

51.       Beside the study of the language of the host country, the study of the language, history and culture of the country of origin should be encouraged. Programmes to this end are implemented in several Council of Europe member states, such as Finland, Italy and the United Kingdom. In addition to highlighting the importance of multiculturalism, such courses help give young migrants a positive image of their countries of origin and build a balanced sense of identity. In the case of return to the countries of origin, they would have the obvious advantage of enabling returning young migrants to reintegrate more smoothly into society. Participation in these courses by non-migrant population should also be encouraged. Council of Europe member states should mobilise additional resources to fund and support extra-curricula activities aimed at highlighting the value of the culture and civilisation of migrants’ communities and of their countries of origin.

52.       Similarly, non formal education may play an important role in teaching young migrants competences and skills such as communication, organisation, planning, team-work, intercultural awareness, public speaking and many others. Therefore the participation of young migrants in areas such as community work, youth, theatre and social work should be encouraged and supported.

e.       Vocational training

53.       The Committee on Migration, Refugees and Demography has already dealt with the issue of vocational training of young asylum seekers in host countries, with the preparation of a report and a draft recommendation endorsed by the Assembly in 200221. Your Rapporteur wishes to reiterate the recommendations made on that occasion, extending them to young migrants in general. One aspect that your Rapporteur wishes to highlight is the importance of improving the quality of vocational training currently provided in Council of Europe member states. In addition, co-operation with the private sector should be strengthened with a view to complementing vocational courses with periods of internship and practical traineeship, which would familiarise their beneficiaries with the work environment of the host country and employers with potential workers of migrant origin. In this sense, a very interesting initiative has been taken in Bergamo (Italy), where the office for foreigners of the municipality, the Chamber of Commerce and the Industrial Union are working together to raise the level of vocational training provided to migrants, and have established a database of job and internship opportunities.

4.       Racism, violence and intolerance

54.       Racism, violence and intolerance can be both the cause of migration movements and a part of the reality young migrants experience during their stay in the host country. Migrants themselves may be racist, violent and intolerant against the local population or other migrant communities. To make this picture more complex, it is necessary to mention the tendency of certain political parties and the media to strumentalise migration issues by proposing populist solutions.

55.       This situation has further deteriorated as a result of the terrorist attacks of 11 September and the escalation of violence in the Middle East, with growing numbers of incidents of racism and violence in Europe against migrants or ethnic groups perceived as potentially dangerous.

a.       Political parties

56.       Political leaders and their parties can and should play an essential role in the fight against racism, xenophobia and intolerance. Political parties could foster practical measures to encourage solidarity, tolerance and respect. There are obstacles, however: lack of political will, weak legislation, and a lack of any real strategy. In some cases political parties themselves stigmatise “foreigners”: immigrants, asylum seekers, refugees, ‘illegal’ aliens. There is a marked tendency in Europe for more and more political parties, under the pretext of protecting the indigenous population, to include proposals in their electoral programmes that exacerbate racism and xenophobia. Your Rapporteur believes that this attitude is contrary to the guiding principles of the Council of Europe and invite member states to be vigilant in the face of the increasing xenophobia fuelled by certain political parties. Nor can we turn a blind eye to the fact that certain government policies have a racist effect even where there is no intention to discriminate.

b.       The role of the media

57.       In this era of information and globalisation the media are in a position to make a difference in the battle to protect human rights and combat racism. Unfortunately, the media – printed press, electronic media, advertising and the Internet – tend to project a negative image of migrants, or to confuse different issues, such as ‘economic migrants’, asylum seekers and refugees.

58.       Action should be taken to change the picture of migration presented by the media. Some have already begun to review their attitude. The Brussels-based International Federation of Journalists, has set up the International Media Working Group Against Racism and Xenophobia (IMRAX), to raise awareness in the media and encourage them to work to high journalistic standards when covering issues concerning race, tolerance and multiculturalism. The United Nations High Commissioner for Refugees is also in the process of launching awareness campaigns and workshops to sensitise the media, as are other international and national agencies and NGOs.

5.       Separated children

59.       Within the age group considered in this report, the situation of migrant children gives rise to particular concerns.

60.       Since 1989, the year of the signature of the UN Convention on the Rights of the Child (CRC), the Council of Europe has made substantial steps towards the elaboration of a more coherent policy on childhood: in 1990 the Parliamentary Assembly adopted Recommendation 1121 on the rights of the child; the following year the Committee of Ministers launched a four year Childhood Policies Project (1992-1995); in 1996 the European Social Charter was revised with the introduction of specific provisions relating to children; on 1st July 2000 the European Convention on the Exercise of Children’s Rights, limited to family law proceedings, entered into force; finally, this year the Parliamentary Assembly adopted Recommendation 1551 (2002) on building a twenty-first century society with and for children: follow up to the European strategy for children (Recommendation 1286 (1996)).

61.       Your Rapporteur, however, believes that all too often migrant children are excluded from the protection to which they are entitled under existing law. It is therefore recommended that in any law or policy measure on children adopted at national or European level, specific mention be made of migrant children who, due to their young age, inability to express themselves or racist attitudes among the authorities or the society are more vulnerable to violations of their rights as compared to other children.

a.        The notion of separated children

62.       Among the victims of trafficking, among asylum seekers who enter Europe illegally - often smuggled and travelling in dangerous conditions - among those who flee their countries in the hope of improving their living conditions, there are often children who have been separated from their parents or those who previously entrusted with their care.

63.       This phenomenon is not new: throughout the 20th century a significant number of separated children has reached Council of Europe member states as a result of wars and armed conflicts. In recent years, however, there has been a steady rise in the number of separated children arriving in Europe; at the same time trafficking in separated children for purposes of prostitution, production of child pornography and other forms of exploitation has become a serious problem. The international community has tried to respond to the new dimension of this phenomenon with various initiatives, including the creation of the Child Migrant Trust22, an international non-governmental organisation of former child migrants and their families, and with the establishment of the Separated Children in Europe Programme, a joint initiative of the International Save the Children Alliance and the United Nations High Commissioner for Refugees (UNHCR)23.

64.       Since its creation, the Separated Children in Europe Programme has given an invaluable contribution to casting a light on this phenomenon and proposing models of best practice at national and European level. The first achievement of the programme is undoubtedly the clarification of the notion of "separated children" as "children under 18 years of age who are outside their country of origin and separated from both parents or their legal/customary primary caregivers"24.

65.       This definition emphasizes that children are separated from their parents or their legal guardian and, as result, are vulnerable to a number of risks and likely to be disadvantaged in emotional, social, educational and economic terms.

66.       Not all Council of Europe member states make use of the notion of "separated children" indicated above. Most states use the expression "unaccompanied minors", which seems to stress that children travel or flee alone but which is generally used also where children are accompanied by someone – a sibling, relative, benefactor, family friend, another young person or the agent who arranges their trip – who is unwilling, unsuitable or unable to provide the child with appropriate care25. In Germany a child is considered to be unaccompanied unless s/he is accompanied by someone who has been given parental custody by court decision26. Other states consider a minor to be accompanied by reason of the very fact that s/he is in the company of a relative27. Differences can be also observed within the same country: it seems that in the United Kingdom the interpretation of the notion of ‘unaccompanied’ may vary according to different local authorities28. Needless to say, these discrepancies are liable to influence the effectiveness of the protection system for separated children and so should be eliminated.

67.       Besides, effectiveness of protection could be jeopardised by the fact that existing national legislation and international standards focus on the situation of separated children seeking asylum. Though recognizing that separated children who wish to apply for asylum find themselves in a particularly delicate situation and that states should comply with relevant UNHCR guidelines, your Rapporteur is convinced that states should introduce legislation with the explicit aim of protecting separated children as such, irrespective of whether they apply for asylum or not. The definition of separate children provided by the Separated Children in Europe Programme is very useful to this end, since it does not make any reference to the lodging of an asylum application.

68.       In fact, your Rapporteur believes that currently in Europe separated children who do not apply for asylum are the most vulnerable to abuse and human rights violations. It was quite unacceptable that the 200 unaccompanied minors who transited through the Sangatte centre in France every month29 were not taken in charge or even registered by the French authorities: like most other people transiting through the centre, they did not apply for asylum in France since their objective was to reach the United Kingdom and apply for asylum there. It cannot be denied that those minors did not apply for refugee status in France, but this does not relieve state authorities from their obligations in terms of assistance and protection to which minors are entitled irrespective of their legal status. Now that the centre is about to shut down, UNHCR is assisting in operations to identify unaccompanied minors, who will subsequently be moved to specialised centres. UNHCR also assists in the repatriation of unaccompanied Afghan minors when in the best interests of the child30. Your Rapporteur wonders what has happened to all the other unidentified minors who have transited through the centre since it was opened in 1999. Some of them may have succeeded in reaching the United Kingdom and maybe have applied for asylum there. Others are probably still unidentified and caught in a net of criminality or exploitation.

69.       Your Rapporteur, therefore, strongly recommends that Council of Europe member states introduce the definition of "separated children" as provided by the Separated Children in Europe Programme and that they assure them an effective system of protection consistent with the guidelines provided by the Separated Children programme and the recommendations made in the present report. Council of Europe member states should ensure that the definition of separated children, and the special care and protection to which they are entitled, are interpreted and applied in a uniform manner throughout their territories, even when the responsibility falls to federate, regional or local authorities.

b.        Figures on separated children

70.       There are no accurate statistics on the number of separated children who arrive in Europe every year, broken down by nationality, sex and age. As for trafficking in human beings, there is a lack of international co-ordination and harmonisation that makes figures difficult to compare. Often the only statistical data on separated children refers to those who apply for asylum31, but even then comparing national data poses a serious challenge due to the differences in definitions and recording practices.

71.       According to information provided by the United Nations High Commissioner for Refugees, during 2000, some 16 100 unaccompanied minors/separated children applied for asylum in 26 European countries32. The Netherlands received the largest number of asylum claims (6 705), followed by the United Kingdom (2 733) and Hungary (1 170). In the current state of affairs, it is still unclear why some countries attract more minors than others.

72.       UNHCR has observed that the main countries of origin of unaccompanied minors/separated children are quite different from the main countries of origin of asylum seekers in general, in the same country and between different countries. For instance, in the year 2 000 Chinese asylum seekers represented 15% of those who applied for asylum in the Netherlands. The Chinese, however, represented 67% of unaccompanied minors/separated children seeking asylum in that country. In the United Kingdom, by contrast, in the same year Chinese unaccompanied minors/separated children were only 3% of the total number of asylum applications from Chinese nationals.

73.       As regards age, the analysis is hindered by the differences in reporting formats (by year of birth, by age or in various age groups) and by difficulties in age assessment of minors, but it seems that unaccompanied minors/separated children are predominantly 16 and 17 years old (some 50%). Only 27% of unaccompanied minors/separated children are girls.

74.       The inadequacy of the available data to give a reliable portrayal of the situation confirms, in your Rapporteur’s opinion, the need to introduce a single notion of separated children in all Council of Europe member states and to put in place a harmonised system of collection and analysis of relevant data, in co-operation with the International Organization for Migration (IOM) and UNHCR.

c.        Rights of separated children

75.       Your Rapporteur is seriously concerned that separated children are excluded from the enjoyment of rights to which they are entitled under international human rights instruments. The 1989 UN Convention on the Rights of the Child (CRC), which has been signed and ratified by all Council of Europe member states, should apply to all children, including separated children and irrespective of their being citizens, foreigners or illegal immigrants.

76.       By ratifying the Convention on the Rights of the Child, governments have agreed to provide the same standards of care to all children within their jurisdiction (principle of non discrimination, Article 2) and to give primary consideration to the best interest of the child in all actions concerning children (Article 3). Unfortunately, the ratification of international instruments does not necessarily mean satisfactory implementation, let alone harmonised interpretation, and the evidence collected by the Committee on the Rights of the Child and the Separated Children in Europe Programme shows that Council of Europe member states have failed to comply with their legal obligations33.

77.       The notion of the best interest of the child, with this or equivalent wording, is already well-known to the legal systems of Council of Europe member states, and pre-existed the 1989 Convention on the Rights of the Child. The notion was generally used in family law, in proceedings regarding divorce, adoption or parental custody. The Convention on the Rights of the Child has extended the field of application of the principle to "all actions concerning children"’, without any limitation or exception.

78.       On the basis of the information at his disposal, your Rapporteur regrets that the principle of the best interest of the child does not inform all existing immigration and asylum law and policy.

79.       The most obvious example of this is the case of the United Kingdom. In ratifying the Convention this member state moved a reservation reading: "The United Kingdom reserves the right to apply such legislation, in so far as it relates to the entry into, stay in and departure from the UK of those who do not have the right under the law of the UK to enter and remain in the UK, and to the acquisition and possession of citizenship, as it may deem necessary from time to time". This reservation has been challenged by many NGOs as incompatible with the object and purpose of the Convention on the Rights of the Child, because it enables the United Kingdom to disregard key provisions of the Convention. In 1995 the Committee on the Rights of the Child expressed a similar view about "the broad nature of the reservations made to the Convention by the state Party which raised concern as to their compatibility with the object and purpose of the Convention. In particular, the reservation relating to the application of the Nationality and Immigration Act does not appear to be compatible with the principles and provisions of the Convention, including Articles 2 [non-discrimination], 3 [best interests], 9 and 10".

80.       On the face of the law, the situation is completely different in Spain, where the best interests of the child are established as a guiding principle for all measures adopted under immigration procedures. Your Rapporteur, however, cannot overlook the serious concerns raised by the Committee on the Rights of the Child, Human Rights Watch and Amnesty International about the conditions of unaccompanied foreign children, mostly Moroccans, especially in the autonomous cities of Ceuta and Melilla. Alarm has been voiced at the overcrowding and bad conditions of residential centres, denial of access to health care and education, failure to provide to unaccompanied children the temporary legal residency status to which they would be entitled due to negligence of the Department of Social Welfare, ill-treatment by the police during forced expulsion, summary expulsions of children without assurance that they would be effectively returned to their family or social welfare agencies in their countries of origin34. The Spanish Ombudsman (Defensor del Peublo) has been investigating the situation of unaccompanied minors from Morocco in Melilla since 2000 and has several times sent recommendations to the local government authorities requesting that they act in strict respect of the law and of the principle of the best interests of the child. Recently, the Defensor del Pueblo has addressed similar recommendations to the authorities of the Canary Islands, to where clandestine migration flows from Northern Africa seems to have moved.

81.       During a mission to Ceuta in June 2002, your Rapporteur visited the Centre "Mediterraneo" for unaccompanied minors, which started its activity in 2000 and had not been considered in the concluding observations of the Committee on the Rights of the Child nor in the report of Human Rights Watch. This structure, which was under the responsibility of the Department of Social Affairs of Ceuta, hosted national as well as foreign unaccompanied children, including asylum seekers, for a maximum capacity of 30 residents; it was run by specialised staff who ensured a 24-hours presence, and had rooms of 1-4 beds with new en-suite sanitary facilities, a canteen, a library and play-room. Resident children were automatically enrolled in local schools and in addition would attend classes of Spanish language in the centre. Your Rapporteur found that the centre Mediterraneo was in full compliance with standards requested by national and international law, a sign that the Spanish authorities are trying to address the situation. Your Rapporteur urges the government of Spain to continue in this direction and to address the situation of separated children effectively and in all urgency.

82.       Serious doubts remain that the principle of the best interests of the child is really of primary importance in the context of migration procedures in Europe. This can be said, for instance, in the case of refusal of entry of unaccompanied minors/separated children at the border; in the decision to repatriate children who have been living in a Council of Europe member states for years, on the basis that they may have a family life in the country to which they are deported to; in the refusal to allow family reunification with a member of the family who is not permanently settled in a member state or when the separated child is in the range of 13-17 years of age, or is not a close member of the family; or in the decision to detain a separated minor for immigration reasons. For these situations your Rapporteur wonders whether the decision is made in the best interests of the child, or rather in the best interest of a strict implementation of immigration law.

83.       Considering that the European Union is proceeding towards the elaboration of a common asylum and migration policy, your Rapporteur regrets that so far this organisation has taken only a timid stance on the issue of the best interests of the child: the European Commission has made reference for the first time to this principle in the proposal for a Council Directive laying down minimum standards on the reception of applicants for asylum in member states35, stating that "The best interests of the child shall be a primary consideration for member states when implementing the provisions of this Directive that involve minors"36. Though commending the introduction of a reference to the principle of the best interests of the child, your Rapporteur believes that such a reference is too general and leaves too much room for discretionary interpretation and implementation. Besides, at the time of writing the Council of the European Union has not adopted the Commission’s proposal, and the deadline for such adoption is approaching steadily. Finally, the scope of the proposed Directive, and the relevant provision, only refers to those minors who have lodged an asylum application, to the exclusion of the others, who are – as your Rapporteur mentioned in the case of Sangatte - those least protected by current national legislation and practice.

84.       Your Rapporteur believes that the binding character and the primacy of the principle of the best interests of the child should be explicitly mentioned in every law, regulation or administrative guideline concerning migration or asylum law of Council of Europe member states. Once again, the endorsement of a principle in the national legal framework is not sufficient if it is not followed by action, but would at least ensure that such a principle can be directly invoked in national legal proceedings37.

      ii.       Non-discrimination

85.       Serious concerns can be raised as regards the application of the principle of non-discrimination in Council of Europe member states. Despite the clear wording of Article 2 of the Convention on the Rights of the Child, most Council of Europe member states discriminate between national and foreign children in access to basic care, such as health services, accommodation and education.

86.       Belgium has even made an interpretative declaration of Article 2 saying that "non-discrimination on the grounds of national origin does not necessarily imply the obligation for states automatically to guarantee foreigners the same rights as their nationals. This concept should be understood as designed to rule out all arbitrary conduct but not differences in treatment based on objective and reasonable considerations, in accordance with the principles prevailing in democratic societies". This declaration has been reviewed but not withdrawn, which has led the Committee on the Rights of the Child to express concern that "the declaration to Article 2 may restrict non-Belgian children in Belgium to the rights contained in the Convention. The Committee emphasizes that the guarantee of non-discrimination in the Convention applies to 'each child within the state party jurisdiction' ".

87.       Sometimes discrimination is due to negligence or ignorance of those responsible for providing access to services, who work either on migration issues or on minors issues, but do not have the knowledge and competence to deal with the issue of migrant minors. To this it should be added that separated children are often not aware of their rights and in any case, unless they are under the care of a legal guardian, may not able to reclaim them.

88.       In the case of migrant children even more than for other migrants, it is necessary to train providers of social services, staff of reception centres and immigration authorities on the law applicable to minors; it is also fundamental to provide interpreters and cultural mediators so as to enable children to express their needs and to be informed about their rights in a manner which is in keeping with their age and maturity.

      iii.       Appointment of a legal guardian

89.       Given that minors do not have full legal capacity, perhaps the main discrimination that may be suffered by separated children compared to national children is the non-appointment of a legal guardian.

90.       Also in this respect the laws of Council of Europe member states differ greatly. The main differences can be noticed in the circumstances which make either possible or mandatory the appointment of a legal guardian, the time limit for his/her appointment and his/her responsibilities.

91.       For instance, under Polish law a guardian cannot be appointed where a minor is deprived of the care of his parents only due to their being in a different country. Your Rapporteur believes that this provision should be repealed at the earliest opportunity or that a substantive amendment should be introduced to avoid that separated children as such are discriminated, since by definition separated children and their parents are in different countries. In Italy the authorities are under a legal obligation to signal the presence of an unaccompanied minor to the judge for minors, who proceeds to the appointment of a guardian. There is no time limit for the appointment, and the procedure may take too long. All separated children in Sweden obtain an adviser usually from the Board of Guardians. In practice, how the role is carried out varies significantly because there are no clear guidelines. The appointment takes from 2 to 4 weeks, but there have been cases where it has taken 4 months. In Germany guardians are appointed within a month for separated children under 16 years of age, but are each responsible for too many children. In Slovenia and Hungary the appointment of a guardian is a legal act comparable to adoption. In a number of countries, including Estonia, Lithuania and the Netherlands, a guardian can be appointed only after an unaccompanied minor/separated child has applied for asylum. Separated children who do not apply for asylum are therefore excluded.

92.       As to who can act as a guardian, it can be a relative, another private individual, a foster family, a welfare institution or another institution approved by the social services department.

93.       As this short review indicates, there are major disparities in the law and practice of Council of Europe member states that should be redressed with a view to guaranteeing the fair and dignified treatment of separated children in Europe. Your Rapporteur regrets that EU Council Resolution of 26 June 1997 on unaccompanied minors who are nationals of third countries, though asking EU member states to ‘provide as soon as possible for the necessary representation of the minor by (…) legal guardianship’, does not indicate any minimum standards to be followed in the appointment of such a guardian. Your Rapporteur, therefore, recommends the Committee of Minister to initiate a project on the harmonisation of national laws on legal guardianship, according to the following guidelines:

i.       all Council of Europe member states should introduce a legal framework for the appointment of a legal guardian for separated children who are under their jurisdiction, irrespective of whether they apply for asylum or not;

ii.       the legal guardian should be individual, fully aware of his/her role, duties and responsibilities, and chosen among people or institutions of proven reliability and having an understanding of the special and cultural needs of the separated child;

iii.       the appointment of the legal guardian should take place as a matter of urgency, and in any case within two weeks of the presence of the child coming to the knowledge of the authorities;

iv.       the guardian should ensure that all decisions affecting the child are in his/her best interests, that the child has suitable legal representation to deal with his or her immigration status and that s/he receives suitable care, accommodation, education, language support and health care;

v.       the legal guardian should also act as a link between the child and various service-providers and advocate on behalf of the child where necessary.

94.       While the appointment of a legal guardian is indispensable, the child’s relationship with his/her parents should always come first. It is therefore the belief of your Rapporteur that family reunification of separated children in Council of Europe member states with their parents in other member states should be facilitated in application of the principle of the best interests of the child, even when the parents do not have permanent resident status or are still in the asylum procedure. Family reunification should also be facilitated between parents/legal or customary caregiver and young separated persons who are over 18 years of age but who suffer from physical or mental disabilities which make them dependants.

      iv.       Placement in appropriate reception structures

95.       An alarming phenomenon which has been brought to the attention of your Rapporteur is the disappearance of separated children. A recent report prepared by Child Focus38 shows that in Belgium, at the end of February 2002, 311 files on disappearances of unaccompanied minors were being processed39. Some children never arrived at the institution or centre to which they had been assigned by the authorities. It is likely that many of them have been intercepted by smugglers or traffickers, while others disappeared deliberately. Some children disappear from the centre where they are housed after a certain time. Finally, other children, especially those who do not apply for asylum, are not assigned to any reception centre or institution because there are no legal provisions to allow a foreign child whose presence in the country is illegal and who does not seek asylum to be placed in a care institution, or because such centres are either full or insufficient. As a result the authorities have no choice but to send these children back onto the streets.

96.       Your Rapporteur believes that member states should take prompt action to find a solution to this alarming phenomenon: legal provisions should be introduced to allow the placement of separated children who do not seek asylum and who do not hold a residence permit in reception centres or care facilities for children; besides, states should invest additional resources in the construction of reception facilities for separated children and the employment of specialised staff to meet their needs.

      v.       Detention for immigration reasons

97.       According to the Statement of good practice of the Separated Children in Europe Programme, "separated children should never be detained for reasons related to their immigration status".

98.       This is not always the case in practice. Separated children can be detained in a number of Council of Europe member state at three different moments: at the border, where they have tried to enter a country illegally; when they are apprehended in the territory of a member state because of their illegal stay; during the adjudication of their asylum claim and with a view to enforcing their deportation.

99.       In the United Kingdom separated children may be detained in immigration detention centres and occasionally in prisons. Despite indications from the government to reverse this policy, this has not yet happened and indeed a hardening of official attitudes has been observed40. In Croatia children are detained only exceptionally and only for the shortest possible period of time. As a rule, they are placed in open type institutions managed by NGOs. Detention lasts only while arrangements are made for the child’s return, while contacts are made with the parents or authorities in the countries of origin41. In Finland detention of separated children with a view to enforcing their expulsion is legally possible, even if there are administrative guidelines which discourage from this practice42. In Austria it is possible to detain separated children over 1443.

100.       The European Union has not taken a clear position on the matter of detention of separated children. The already mentioned EU Council Resolution of 26 June 1997 on unaccompanied minors who are nationals of third countries, which with reference to detention only applies to unaccompanied minors seeking asylum, says that "member states should normally place unaccompanied minors during the asylum procedure (…) in reception centres with special provisions for minors, or (…) in other accommodation with suitable provisions for minors, for example such as to enable them to live independently but with appropriate support. Member states may place unaccompanied minors aged 16 or above in reception centres for adult asylum seekers".44

101.       The proposal for a Council Directive laying down minimum standards on the reception of applicants for asylum in member states presented by the Commission in 2001 clarifies the content of the previous instrument but still does not take a stand on detention: "Unaccompanied minors who make an application for asylum shall, from the moment they are admitted to the territory to the moment they have to leave the member state in which the application has been lodged or being examined, be placed, in the following order of priority (…) in centres specialised in accommodation for minors; (…) in other accommodation with a suitable situation for minors. Siblings shall be kept together. Changes of unaccompanied minors' residence shall be limited to a minimum". 45

102.       Your Rapporteur believes that detention cannot in any case be considered as suitable accommodation for minors who have not committed any crime and who are often traumatised as a result of neglect, exploitation, abuse and persecution. Separated children should not be detained solely on immigration grounds, and states should take legal and practical measures to provide appropriate accommodation alternatives to detention.

103.       As stated above, it is your Rapporteur’s opinion that the appointment of a legal guardian should be made as soon as the presence of a separated migrant child comes to the knowledge of the authorities. As a result, it should never be possible to return a separated child before a legal guardian has been appointed to act on his/her behalf. . Besides, separated children whose return is ordered but cannot be carried out for lack of readmission agreements or for any other reason should be taken into care without delay by the authorities of member states, and provided with accommodation and access to health care and education until return is possible.

104.       For a separated child to be returned to his/her country of origin the following conditions should be met:

i.       the authorities of the host state should ascertain whether it is safe to return the child to that country;

ii.       the child’s carer, guardian or adviser in the host country should agree that return is in the best interests of the child;

iii.       return should be conditional upon the findings of a careful assessment of the family situation that the child would find upon return and of whether the child’s family would be able to provide appropriate care. In the absence of parents or other family members, the suitability of child-care agencies in the country of return should be investigated. The assessment should be conducted by a professional and independent organisation or person and should be objective, non-political and aimed at ensuring respect of the principle of the best interests of the child;

iv.       the child’s parents, relatives, other adult carer or would-be child-care agency in the country of return should make an explicit and formal undertaking to provide immediate and long-term care upon the child’s arrival;

v.       during return the child should be accompanied and treated in a manner in keeping with his/her age;

vi.       the well-being of the child following return should be effectively monitored by appropriate authorities or agencies sur place, who should liaise with and report to the authorities of the country from which the child has been returned;

vii.       separated children who arrived in a host country as minors but who have reached the age of 18 should be treated as vulnerable cases and consulted on the conditions required for a successful reintegration into their country of origin.

6.       Trafficking

105.       Trafficking in human beings for the purposes of various kinds of exploitation is a rapidly expanding phenomenon in Europe and worldwide. The victims are generally young people, such as children, adolescents and young women.

106.       Young people are trafficked for prostitution, forced labour, organ removal and illegal adoption. They come from central and eastern Europe, the Balkans, the countries of the Commonwealth of Independent States (CIS), West Africa, South-East Asia and China. Some of them want to leave their countries of origin due to lack of prospects, widespread poverty, age or gender-based discrimination, persecution, domestic violence, a situation of armed conflict, generalised violence or massive human rights violations in their countries of origin. They are lured by false offers of marriage or employment, and they accept because they would not have any legal way of being admitted into rich countries. Others are trafficked through abduction and coercion. Very often the victims and their families have contracted a large debt to pay for the journey to Europe which they can only repay through submitting to the work imposed by the traffickers. Violence, threats and intimidation are commonly used to ensure that these young people continue to work and remain compliant. Most trafficked persons are undocumented and have no legal status in Europe, which leaves them totally vulnerable to the control of their traffickers and fearful of approaching the authorities.

107.       As the International Organization for Migration (IOM) regrets, there is a lack of reliable statistics on the number of victims of trafficking, because of the poor harmonisation in data collection methods and due to the obvious clandestine nature of the phenomenon.

108.       Your Rapporteur will not duplicate the work done by other rapporteurs who have studied the question of trafficking in human beings and presented draft recommendations leading to the adoption of, among others, Recommendation 1325 (1997) on Traffic in women and forced prostitution in Council of Europe member states, Recommendation 1467 (2000) on Clandestine immigration and the fight against traffickers, and Recommendation 1545 (2002) on the Campaign against trafficking in women.

109.       Your Rapporteur, however, wishes to indicate three elements which in his opinion should guide member states and the Parliamentary Assembly in this field: addressing the causes of trafficking and taking steps to create better economic opportunities in the countries at risk; stepping up and supporting preventive action, such as information campaigns in the countries of origin of victims of trafficking; finally, establishing a harmonised criminal law framework at the European level to punish those responsible for trafficking in human beings.

110.       Above all your Rapporteur urges Council of Europe member states to adopt a correct approach to the issue of trafficking: "Trafficking in human beings must not be seen primarily or exclusively from the perspective of national security; it must not be viewed merely from the point of view of national protective interests; it must not be seen only as a fight against organised crime and illegal migration. Human trafficking is first and foremost a violation of human rights"46 .

111.       With this consideration in mind, your Rapporteur wishes to raise some specific issues concerning trafficking of young persons.

a.       Trafficking in children

112.       Trafficking in children in Europe is a growing phenomenon which is causing deep concern in the internationally community. As for trafficking in general, there is a lack of reliable statistics to establish the scale of the problem.

113.       There is evidence, though, that Albanian children under 12 are trafficked into Greece and Italy for forced labour47. Save the Children estimates that up to 80% of all trafficked persons from Albania are teenage girls under 1848. In France there are cases involving children from China being forced to work in sweatshops, and children from Sierra Leone being forced into sex work. In Spain, Roma children from Portugal, Romania and other eastern European countries are exploited as beggars in the streets. Trafficking routes to the Netherlands appear particularly well-established with children being brought from eastern Europe, China and Nigeria by organised gangs to work in the sex trade. About 10-15% of the trafficked persons whom IOM has assisted to return home from the Balkan countries are girls under the age of 1849.

114.       In recent years, the international response has focused on the reinforcement of the existing legal framework. The Convention on the Rights of the Child contained two provisions referring to this issue, Article 34 which reads: "States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse (…)’ and Article 35 ‘States parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form". In January 2002 these provisions were strengthened with the entry into force of an optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography entered into force50. In 1999 the International Labour Organisation (ILO) promoted the adoption of an international binding instrument referring specifically to the trafficking of children, the Convention No. 182 concerning the prohibition and immediate action for the elimination of all the worst forms of child labour51. Finally, the issue has been addressed in the Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementary to the Convention against Transnational Organized Crime of 15 December 200052.

115.       At regional level, both the Council of Europe and the European Union have intensified their activities to curb trafficking in children and provide adequate assistance and protection to young victims. In 2001 the Committee of Ministers adopted Recommendation 16 to member states on the protection of children against sexual exploitation. The EU Council of Ministers has also adopted a Joint Action to combat trafficking in human beings and the sexual exploitation of children53 as well as two programmes: STOP (I and II) for the exchange of information between member states on trade in human beings and the sexual exploitation of children54, and DAPHNE, to contribute towards ensuring a high level of protection of physical and mental health by the protection of children, young persons and women against violence55.

116.       Without diminishing the importance of activities aimed at curbing trafficking in children, your Rapporteur believes that a greater effort should be made to ensure appropriate protection and assistance for the young victims of trafficking, especially children, in co-operation and complementarity with other international organisations having a specific mandate in this field, such as UNICEF, UNHCR and IOM.

117.       The Council of Europe is well placed to foster such an activity because it can support member states in the reform which is necessary to adapt their legal systems to international human rights standards; has a well-established experience in youth issues; and, finally, because a very high number of those young people who are trafficked in Europe come from, transit to and are exploited in Council of Europe member states.

118.       One of the reforms that are urgently required is the introduction of a harmonised procedure for the appointment of legal guardians for separated children and a clear definition of their role, as it has been mentioned in the previous chapter of this report.

119.       Besides, it is deplorable that despite the signature and ratification of various international instruments, most Council of Europe member states do not have special protection regimes for trafficked children. In some member states, including the former Yugoslav Republic of Macedonia, Greece and Italy, children under 12 who have been victims of trafficking when discovered by the authorities are placed in orphanages without any special social or psychological counselling. At other times older children are treated as illegal migrants and criminals, and face prosecution and imprisonment in the countries where they were arrested.

120.       Finally, your Rapporteur believes that more financial resources should be allocated to prevention activities in the countries of origin of potential child and young victims of trafficking. Information campaigns suitable to children should be conducted in schools and other places of socialisation or care, including orphanages, especially in areas at risk.

b.       Protection, assistance and reintegration of young victims of trafficking

121.       Your Rapporteur believes that the responsibility of Council of Europe member states towards young victims of trafficking should not finish once these young people return to their countries of origin. As was mentioned in the introduction to this report, very often the country of origin is itself a Council of Europe member state.

122.       Once returned in their countries of origin, victims of trafficking may experience serious problems while trying to reintegrate in society: they may be rejected by their families, who are ashamed that they were involved in prostititution or other illegal activities. Often they do not have sufficient qualifications to find employment or suffer from the consequences of trauma. Many of them again fall prey to traffickers.

123.       Council of Europe countries of origin should devise, implement and monitor appropriate reintegration programmes for returning child and young victims of trafficking, and establish appropriate reception facilities where they can be housed and receive counselling. These initiatives should be supported by other Council of Europe member states and international agencies, including the European Union, the International Organization for Migration and the United Nations High Commissioner for Refugees, in the limits of their mandates.

c.       Training of officials coming in contact with young victims of trafficking

124.       Your Rapporteur would like to reaffirm the importance of training public officials who come into contact with migrants and, in particular, with young victims of trafficking. Council of Europe member states support the initiatives of the International Organization for Migration, the United Nations High Commissioner for Refugees and other agencies – within the limits of their mandates - to train police officers, border police and immigration officials on the international legal framework applying to trafficking, with a particular attention to the assistance and protection needs of child and young victims.

7.       Conclusions and recommendations

125.       Young migrants represent an enormous potentiality and should be given the instruments to participate fully and contribute to the establishment of a democratic society. Some of them require special care and attention, including separated children and young victims of trafficking. A further effort is urgently required to provide these vulnerable young people with appropriate assistance and protection. Today, the challenge for European society is how to ensure that young people are an element of social cohesion rather than an element of disruption. To this end the Council of Europe, in co-operation with other relevant agencies and institutions, should elaborate a coherent and multidisciplinary long-term policy, fully associating young migrants to its elaboration and implementation.

APPENDIX

Council of Europe member states

Signature and ratification of the main international instruments concerning trafficking in children, as of 20 July 2002

States

Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementary to the Convention against Transnational Organized Crime of 15 December 2000

Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography

ILO Convention No. 182 concerning the prohibition and immediate action for the elimination of all the worst forms of child labour

Albania

signed

-

ratified

Andorra

non available

ratified

-

Armenia

signed

-

-

Austria

signed

signed

ratified

Azerbaijan

signed

signed

-

Belgium

signed

signed

ratified

Bosnia and Herzegovina

ratified

signed

ratified

Bulgaria

ratified

ratified

ratified

Croatia

signed

ratified

ratified

Cyprus

signed

signed

ratified

Czech Republic

signed

-

ratified

Denmark

signed

signed

ratified

Estonia

-

-

ratified

Finland

signed

signed

ratified

France

signed

signed

ratified

Georgia

signed

-

ratified

Germany

signed

signed

ratified

Greece

signed

signed

ratified

Hungary

signed

-

ratified

Iceland

signed

ratified

ratified

Ireland

signed

signed

ratified

States

Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementary to the Convention against Transnational Organized Crime of 15 December 2000

Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography

ILO Convention No. 182 concerning the prohibition and immediate action for the elimination of all the worst forms of child labour

Italy

signed

ratified

ratified

Latvia

-

signed

-

Liechtenstein

signed

signed

ratified

Lithuania

signed

-

-

Luxembourg

signed

signed

ratified

Malta

signed

signed

ratified

Moldova

signed

signed

ratified

Netherlands

signed

signed

ratified

Norway

signed

ratified

ratified

Poland

signed

signed

-

Portugal

signed

signed

ratified

Romania

signed

ratified

ratified

Russia

signed

-

-

San Marino

signed

signed

ratified

Slovakia

signed

signed

ratified

Slovenia

signed

signed

ratified

Spain

ratified

ratified

ratified

Sweden

signed

signed

ratified

Switzerland

signed

signed

ratified

“The former Yugoslav Republic of Macedonia”

signed

signed

ratified

Turkey

signed

signed

ratified

Ukraine

signed

signed

ratified

United Kingdom

signed

signed

ratified

Reporting committee: Committee on Migration, Refugees and Demography.

Reference to committee: Standing mandate

Draft recommendation unanimously adopted by the committee on 17 December 2002.

Members of the committee: Mr Iwiński (Chairperson), Mr Einarsson (1st Vice-Chairperson), Mrs Vermot-Mangold (2nd Vice-Chairperson), Mrs Bušić (3rd Vice-Chairperson), MM. Akhvlediani, Aliyev G., de Arístegui (Alternante: Agramunt), Arzilli, Bernik, Mrs Björnemalm, MM. Van den Brande, Branger, Braun, Brînzan, Brunhart, Cabrnoch, Christodoulides, Cilevičs, Çörüz, Danieli, Debarge (Alternate: Salles), Dmitrijevas, Dokle, Dubié, Mrs Err, Mrs Fehr, Mrs Frimannsdóttir, MM. Grzesik, Grzyb, Hancock, Higgins, Hovhannisyan, Ilaşcu, Ivanov, Lord Judd, MM. Karpov, Kirilov, Kolb, Kósáné-Kovács, Koulouris, Kulikov, Kvakkestad, Laakso, Le Guen (Alternate: Kucheida), Liapis, Mrs Lörcher, M. Loutfi, Mrs Markovska, MM. Matviychuk, Mutman, Naro, Nessa, Mrs Onur, Mrs Palečková, MM. Popa, Prijmireanu, Puche (Alternate: Fernández-Aguilar), Pullicino Orlando, Rakhansky, Reymann, Sağlam, von Schmude, Schweitzer, Mrs Shakhtakhtinskaya, MM. Slutsky, Soendergaard, Mrs Stoisits, MM. Telek, Tkáč, Tosić, Vera Jardim, Vieira, Wilkinson, Wray, Yáńez-Barnuevo, Zavgayev, Zhirinovsky, Mrs de Zulueta, Mrs Zwerver.

N.B. The names of those members present at the meeting are printed in italics.

Secretariat of the committee: Mr Lervik, Mrs Nachilo, Mrs Sirtori-Milner.


1 Source of the information about the situation in the Netherlands: Alfons Fermin, The justification of mandatory integration programmes for new immigrants, European Centre on Migration and Ethnic Relations, ERCOMER, Utrecht University, 2001.

2 It seems that 70% of all local authorities have never imposed sanctions. See Independent Commission on Migration to Germany, Structuring Immigration – Fostering Integration, Integration concepts in selected European countries, The Netherlands, July 2001, p. 247, at:        http://www.demographie.de

3 Act on the integration of immigrants and reception of asylum seekers, Number 493/1999, at: http://www.mol.fi/migration/act.pdf

4 Source of these estimates: Independent Commission on Migration to Germany, Structuring Immigration – Fostering Integration.

5 Article 8b 1) TEU: "Every citizen of the Union residing in a member state of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the member state in which he resides, under the same conditions as nationals of that state. This right shall be exercised subject to detailed arrangements to be adopted before 31 December 1994 by the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a member state".

6 See interview to Karel de Grucht, from the Flemish Liberal Party, in BBC news 28 March 2002, at: http://news.bbc.co.uk/1/hi/world/europe/1898006.stm

7 http://www.coe.fr/cplre/textad/indexe.htm

8 http://www.coe.fr/cplre/textad/indexe.htm

9 http://assembly.coe.int

10 http://conventions.coe.int/Treaty/en/Treaties/Html/144.htm

11 Independent Commission on Migration to Germany, Structuring Immigration – Fostering Integration, July 2001, p. 241.

12 Recommendations Rec (2000)15 of the Committee of Ministers concerning the security of residence of long-term migrants and Rec (2002)4 on the legal status of persons admitted for faimily reunification.

13 Also some positions in the private sector are reserved to citizens or, in EU countries, EU citizens. For France see: ‘L’insertion des jeunes d’origine étrangčre’, study presented by Mrs Mouna Viprey for the Economic and Social Committee, 2002.

14 The Assembly recommends that the Committee of Ministers (…) iv. Urge the governments of member states (…) b. to review their national legislation with a view to making it more flexible and adequate to the needs of immigrants and foreign residents, giving particular attention to the criteria for granting citizenship’ (Article 11).

15 It is worth mentioning some provisions of the European Convention on Nationality (1997) which may apply to second generation migrants and migrants arrived in the host country at a young age: ‘Each State Party shall facilitate in its internal law the acquisition of its nationality for the following persons: (…) e. children who were born on its territory and reside there lawfully and habitually; f. persons who are lawfully and habitually resident on its territory for a period of time beginning before the age of 18 (…)’. The Convention entered into force on 1 March 2000 and has been ratified by only 8 member states.

16 See Reply from the Committee of Ministers to Recommendation 1500 (2001) on Participation of immigrants and foreign residents in political life in Council of Europe member states, 20 September 2002, paragraph 4.

17 Article 28, paragraph 1: "States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) Make primary education compulsory and available free to all; (b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need; (c) Make higher education accessible to all on the basis of capacity by every appropriate means; (d) Make educational and vocational information and guidance available and accessible to all children; (e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates."’

18 European youth trends 2000, Vulnerable youth: perspectives on vulnerability in education, employment and leisure in Europe, expert report by Andy Furlong, Barbara Stalder and Anthony Azzopardi.

19 Rapporto Italia Commissione per le politiche di integrazione degli immigrati

20 Seminar ‘Intégration: et les jeunes d’origine étrangčre?’, organised by the Swiss Federal Committee for Youth, Bienne (Switzerland), 21-22 November 2002.

21 Rapporteur: Mrs Zwerver (Netherlands, SOC); Recommendation 1552 (2002) on vocational training of young asylum seekers in host countries.

22 The association organised the First international Congress on child migration, on 27-31 October 2002 in New Orleans (USA).

23 http://www.sce.gla.ac.uk.

24 Separated Children in Europe Programme, Statement of Good Practice, October 2000, http://www.sce.gla.ac.uk

25 See, for instance, the definition of unaccompanied minors provided by the EU Council Resolution of 26 June 1997 on unaccompanied minors who are nationals of third countries is "third country nationals below the age of eighteen, who arrive in the territory of the member states unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively in the care of such a person". This Resolution can also be applied to minors who are nationals of third countries and who are left unaccompanied after they have entered the territory of the member states.

26 It should also be noted that, contrary to the UN Convention on the Rights of the Child, pursuant to which all persons under 18 years of age are to be considered as minors, the German Law on Asylum Procedures prescribes that all refugees over 16 years of age have unlimited legal capacity in terms of Asylum Law.

27 For instance Portugal.

28 Wendy Ayotte and Louise Williamson, Separated children in the UK, 2001.

29 The vast majority of these separated children were around 15-16 years of age. This information has been provided by the French Red Cross during a visit of a delegation of the Committee on Migration, Refugees and Demography to the reception centre of Sangatte on 7 March 2001.

30 UNHCR Briefing Notes, Sangatte: the three aspects of UNHCR’s involvement, 16 July 2002.

31 See the statistics provided by UNHCR at http://www.sce.gla.ac.uk.

32 These countries include: Austria, Belgium, Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Ireland, Italy, Lithuania, Luxembour, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland and United Kingdom.

33 See the country reports at http://www.sce.gla.ac.uk

34 Concluding Observations of the Committee on the Rights of the Child: Spain, 7 June 2002, CRC/C/15/Add.185; Human Rights Watch, Spain and Morocco, Nowhere to turn: State Abuses of Unaccompanied Migrant Children by Spain and Morocco, May 2002, and Spain, The other face of the Canary Islands: Rights violations against migrants and asylum seekers, February 2002; Amnistía Internacional, El asilo en Espańa: una carrera de obstáculos, September 2001.

35 COM (2001) 181 final, 3 April 2001

36 Article 24, paragraph 1

37 It should be noted that, unlike for other international instruments such as the European Convention on Human Rights and the UN Convention Against Torture, it is not possible to lodge an individual complaint to an international monitoring body against a violation of the rights guaranteed in the Convention on the Rights of the Child. Therefore the only possibility for an individual to raise the violation of a right guaranteed in the Convention on the Rights of the Child is before national courts.

38 ‘The disappearance of unaccompanied minors and minors victim of trafficking in human beings, Child Focus, April 2002.

39 To have a term of comparison, in 2001 1427 unaccompanied minors were registered in Belgium. 927 of them submitted an asylum application, while the other 500 did not apply for asylum and were staying in the country illegally when they were discovered.

40 Wendy Ayotte and Louise Williamson, Separated children in the UK, 2001.

41 Separated Children in Europe Programme, Country reports, Croatia.

42 Separated Children in Europe Programme, Country reports, Finland.

43 Separated Children in Europe Programme, Country reports, Austria.

44 Article 4, paragraph 4

45 COM (2001) 181 final, 3 April 2001, Article 25, paragraph 2.

46 Ms Helga Konrad, Chair of the Stability Pact Task Force on Trafficking in Human Beings, Foreword to "Trafficking in Human Beings in Southeastern Europe", published by UNICEF, June 2002.

47 "Trafficking in Human Beings in Southeastern Europe", published by UNICEF, June 2002, page 11.

48 Daniel Renton, "Child trafficking in Albania", Save the Children, Tirana, 2001, page 9.

49 ‘Trafficking in Human Beings in Southeastern Europe’, published by UNICEF, June 2002, page 11.

50 UN GA Res 54/263, 25 May 2000, at: http://www.unhchr.ch

51 ILO Convention No. 182, adopted on 17 June 1999 and entered into force on 19 November 2000, at: http://ilolex.ilo.ch. As of 1 July 2002, the Convention has been ratified by 127 states, including all Council of Europe member states with the exception of Andorra, Armenia, Azerbaijan, Latvia, Liechtenstein, Lithuania, Poland and Russia.

52 http://www.uncjin.org

53 Joint Action 97/154/JHA of 24 February 1997 adopted by the Council on the basis of Article K 3 of the Treaty on the European Union concerning action to combat trafficking in human beings and sexual exploitation of children.

54 Joint action 96/700/JHA, of 29 November 1996, adopted by the Council pursuant to Article K3 of the Treaty on European Union, establishing an incentive and exchange programme for persons responsible for combating trade in human beings and the sexual exploitation of children, and 2001/514/JHA: Council Decision of 28 June 2001 establishing a second phase of the programme of incentives, exchanges, training and cooperation for persons responsible for combating trade in human beings and the sexual exploitation of children (STOP II).

55 Decision No. 293/2000/EC of the European Parliament and of the Council of 24 January 2000 adopting a programme of Community action (the Daphne programme) (2000-2003) on preventive measures to fight violence against children, young persons and women. This programme is also open to applicant countries of central and eastern Europe, as well as EFTA/EEA countries, Cyprus, Malta and Turkey under special provisions.