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10 operational and policy recommendations to better protect children in migration and enhance the respect of their rights
1. Better accommodation and reception
Reception arrangements must meet the rights and needs of children, including in families, in line with their best interests, and be provided to all children and families in need and in a formal procedure. They should include swift and child friendly registration and information, suitable accommodation, nutrition, access to health services, play facilities, psychosocial assistance, independent legal assistance and referral to specialised services where needed. Efforts should be undertaken to provide accommodation for unaccompanied and separated children in small scale reception centers, family units or with foster families. Where relevant, especially in cases of child victims of trafficking and/or exploitation, children should be placed in protective accommodation with personnel trained on these matters specifically. Children, including those in families, should never be detained for migration related reasons; detention is never in the best interests of the child and always a violation of their rights. In addition, fear of detention is one of the reasons why children go missing from state services.
Member states: Central authorities need to improve conditions and closely monitor that national reception systems respect the aforementioned basic standards, including when reception is outsourced to private entities. An assessment of whether there is a de facto deprivation of liberty under Article 5 of the European Convention on Human Rights (ECHR) therefore needs to be undertaken, regardless of the name or characterisation given to a particular place or type of accommodation. Authorities should prohibit and swiftly end the detention of migrant children for reasons linked to migration.
EU institutions and agencies: Funding should be channelled to support member states, local authorities, and civil society to provide quality accommodation and reception arrangements. Common qualitative benchmarks should be developed to verify that standards of quality of accommodation are similar throughout the European Union. EASO’s forthcoming benchmarks on reception of unaccompanied children would contribute to more uniform quality standards in this regard if described in clear and unambiguous terms.
2. More efficient procedures and international cooperation, including in the application of international protection and Dublin procedures
> Quality best interest assessments and decision making, front-loading of resources and consideration of all possible applicable pathways, with the ultimate aim to find a durable solution for the child, can reduce delays, costs and streamline procedures. This would contribute to preventing child disappearances and would reduce the risks of them being subject to harm.
> The best interests of the child should guide all decisions concerning him or her (see also below on best interests). This should include decisions in the framework of the Dublin Regulation and decisions on the country responsible for examining applications for international protection of children (including as dependents).
> Children who do not have a family member in the member state where they are should always be able to apply for asylum in that country, unless it can be demonstrated that it is in their best interests for the claim to be heard in another country, as stated by the European Court of Justice .
> All procedures should be explained clearly, in a child-friendly manner, to the child in all their steps. Children should receive all necessary information about available and ongoing procedures in a timely manner (e.g. as early as possible to be able to benefit from family reunion possibilities under the Dublin Regulation). To this end, they should be assisted by a guardian with the necessary qualifications and expertise from the earliest possible stage and should be kept informed on the progress of their case. Member states should proactively trace the family members, siblings and relatives of a child, with their consent and in accordance with duties under the Dublin Regulation.
Member states: Focus on quality initial-decision making in all immigration and asylum procedures. Applications for international protection and family reunification involving children, in particular unaccompanied children, should be treated with priority and in accordance with these recommendations. Member states should endeavour to cooperate to the fullest extent possible in the assessment of the best interests of a child, in conducting family tracing and in the verification of family links, to assist in ensuring swift family reunion, in particular in Dublin procedures.
EU institutions and agencies: Support the development of standardised approaches in areas such as best interests’ assessments and family tracing, as well as enhanced cooperation between member states, to ensure the efficient functioning of the Dublin procedures for swift family reunion, which is in the interest of children and member states alike. To this end, liaison officers in other member states’ Dublin Units, common templates, guidance as well as Standard Operating Procedures (SOPs) should be in place to facilitate cooperation and ensure participation of all relevant actors. Institutions and agencies should also ensure that the system expected to replace the current Dublin Regulation strengthens best interests assessments in Dublin procedures and maintains the principle that children should stay in the member state where they are present, unless this is not in their best interests, as unnecessary transfers under the Dublin Regulation add trauma for an already vulnerable child, and often constitute a reason for children going missing.
3. Qualified and trained guardians to be swiftly appointed for all unaccompanied and separated children
A guardian should be appointed immediately after the child’s arrival, before proceedings take place, as one of the main safeguards for his or her best interests and wellbeing. The guardian should assist and represent children in all proceedings, including in Dublin proceedings, ensure their best interests are respected, that their views are taken into account and exercise legal capacity where necessary, also when children do not apply for asylum. Guardians should be independent, trained, vetted, sufficiently supported and funded and held accountable to safeguard the child's best interests. They should participate in inter-agency coordination, meetings and deliberations concerning services and proceedings involving the child. While children with their parent(s) have their legal guardian present, they should be appointed an independent case worker to fulfil similar functions to a guardian.
Member states are encouraged to appoint a guardianship authority to organise the functioning of a guardianship service as required by the Asylum Procedures Directive. The authority should recruit, train and support guardians in their work. An independent monitoring system of guardians as well as accountability mechanisms, including a child friendly complaints mechanism, should be put in place.
EU institutions should monitor the effectiveness of national guardianship systems against the qualitative benchmarks identified by the FRA Handbook on Guardianship for children deprived of parental care. Further development and a continuous support to networks of guardianship services (e.g. ENGI) is important to promote exchange of good practices and information across countries.
4. Better information for children and respect of the right to be heard
Children should be empowered to express their views on and participate in all decisions concerning them, in accordance with their age and maturity.
Member states: Providing clear, comprehensive, up-to-date and timely information to children, including follow up information, tailored to their ability to understand (age-friendly, in the language that they understand) and complemented with appropriate support and assistance, is essential to assess their needs and best interest, for them to trust formal systems in the EU and to enable them to make informed decisions about their future, in accordance with their age and maturity. As well as information, this requires adapted procedures, and provision of qualified and independent legal assistance, as well as guardians for unaccompanied and separated children.
EU institutions and agencies: Organising consultations with civil society which include also direct participation of children. This would ensure that any actions taken have been duly assessed in terms of the impact for children. In addition, it will be important to incorporate child expertise in the team of officials working on migration matters.
5. Identification and implementation of durable solutions for children, in line with their best interests
The ultimate aim in addressing the situation of each child in migration is to identify a durable solution that addresses their protection needs in a holistic manner, takes into account the child’s views, in accordance with their age and maturity and, in cases of unaccompanied and separated children, reunites them with parents or other primary caregivers wherever possible and in their best interests . This should ensure that every child is able to develop into adulthood, in an environment that will meet his or her needs and fulfil his or her rights as defined by the Convention on the Rights of the Child and will not put the child at risk of persecution or serious harm. Best interest assessments should be multidisciplinary, robust and include participatory procedures, which should involve the views of the child and those of his or her guardian. Such a procedure is not only a legal obligation, but would also address children’s fear of migration systems and deportation, and ensure that any transfer of the child to another country is in their interests. Family reunification can be facilitated in the country of current residence, country of origin or a third country according to the best interests of the child.
Member states: The identification and implementation of durable solutions for each child should occur without undue delay. Decisions must be based on formal procedures with sufficient safeguards, assessing and determining the best interests of the child, and be carried out by professionals with the required expertise, because the durable solution will have fundamental long-term consequences for the child. If the durable solution is determined to be in the country of current residence, a secure residence status should be provided that does not expire at the age of 18.
EU institutions and agencies: Existing tools in best interests’ assessments and determination procedures, including those developed by EASO, UNHCR and UNICEF should be used, improved and adapted as needed to provide practical tools for member states to introduce systematic and robust procedures in their migration and asylum structures, with the direct involvement of child protection actors.
6. Support for children to move safely and regularly from one country to another when in their best interests
Reinforcing the system of Dublin transfers towards the first country of arrival is not a solution to the issue of unsafe movements of children across borders. Instead, as mentioned above, the Dublin Regulation is a key instrument to enable unaccompanied and separated children to reunite safely with their families within the EU, as it prioritises families reunification. In addition, children should have unhindered access to relocation as a tool for protection when in their best interests, and more possibilities should be made available for children to travel to the EU regularly, and for families to migrate together.
Member states: Current commitments on relocation need to be extended and implemented. Additionally, member states should reduce restrictions to qualify for family reunification, reduce waiting times, and speed up procedures to make it possible for children to reunite with their families already in the EU, including with extended family members, both within Dublin procedures and family reunification procedures. Increasing the quotas of resettlement of refugee children from third countries is also a way to avoid children embarking on dangerous journeys, as well as reviewing labour migration policies and restrictions imposed on family members and family unity.
EU Institutions and agencies: The EU should monitor that the reasons for migrant children to go missing or move unsafely across borders are properly addressed in the EU legislation and policy. The EU can also play a vital role by looking at mechanisms that exist between Member states and improving cross-border cooperation that protects children. A revision and expansion of the family definitions under the Dublin Regulation should be considered as a way to prevent children from going missing and to ensure family unity and the best interests of the child. The review of the EU regular migration framework should identify strengths and weaknesses regarding the facilitation of family migration and family reunification.
7. More resources for awareness raising and training of all professionals working with children
This should include for state services on first contact/encounter and in reception or accommodation centres, law enforcement, immigration and asylum authorities, health professionals, carers and school personnel. Training should be tailored to the type of contact that the professional has with the child . Training modules available should include:
>modules on risk assessment to target care and protection depending on the individual needs of the child, with a specific focus on early identification of victims of trafficking and/or exploitation and abuse
>training on good practices to prevent disappearance, including in cases of victims of trafficking (e.g. child friendly communication, building of trust with the child, etc.).
>training on assessing and determining the best interests of the child
>training for law enforcement to ensure that all cases of missing unaccompanied children trigger appropriate responses
>training of communicating with and interviewing children and providing information on procedures and rights to which they are entitled in a child friendly way.
8. Formalisation of the cooperation between professionals involved in the situation of a missing unaccompanied child
Formalisation of cooperation would lead to substantial improvement of the cooperation, as well as faster and more appropriate responses where needed. This is also important to ensure that necessary procedures and protocols are in place to systematically report and respond to instances of unaccompanied children going missing. The best interests of the child must be the guiding principle when structuring this cooperation and mechanisms need to be in place for data protection. Missing refugee and migrant children must be treated as missing children first and foremost.
Member states should ensure that the cooperation between actors involved in the protection of migrant children is formalised, allowing for a clear division of tasks, accountability and clear procedures. A child protection authority should play the main role in coordinating the cooperation, including when children are asylum seekers. National child protection organisations with expertise in providing administrative, legal and operational support to parents and guardians in managing cases of missing children should be supported, as an essential complementary resource to the role played by the police. Member states should also standardise practices for the assessment of risks, including enhanced efforts to identify children who are or have been victims of exploitation and/or human trafficking, and appropriate training on trafficking in human beings and risk assessments. A more systematic and efficient risk assessment could allow to prioritise (scarce) resources to the cases of those children who face the most urgent risk to their safety and for whom it is essential to take swift decisions in their best interests to prevent harm.
EU Institutions and agencies: Support the further development and sharing of good practices and interagency cooperation efforts developed at local level to prevent and respond to missing children in migration and foster their implementation consistently within the country.
9. Stronger cross border cooperation in child protection, on both governmental and non-governmental levels, including when responding to disappearances
Existing networks with expertise and experience in the protection of vulnerable children should be enhanced, including the network of hotlines for missing children - an important ally in ensuring that every child moving across borders is accounted for - as well as the network of guardianship institutions. Collectively, these networks can provide a continuum of protection, care and support for all children involved in cross-border migration, regardless of their migration/residence status, whether in forced displacement or voluntary, and through all stages of their migration journey. European cooperation should seek to develop child protection systems that ensure that children have access to the full range of rights they are entitled to in accordance with European and international law wherever they are.
Member states: It is essential to provide financial support to strengthen the national civil society organisations that are part of cross-border networks providing essential services to migrant children. For example, member states have an obligation, under the Universal Service Directive (2009/136/EC, art.27a4), to make every effort to ensure that citizens have access to a service operating a hotline to report cases of missing children. The hotline shall be available on the number “116000”. Member states shall also (art.27a3) ensure that citizens are adequately informed of the existence and use of services provided under the “116” numbering range, in particular through initiatives specifically targeting persons travelling between Member States. It is essential, to that end,
>to provide support, including finalcial support, to the national members of the international network of hotlines for missing children,
>to support the efficiency of its existing case management system to protect children across border,
>to improve awareness on the availability of the number, in order to improve swift reporting of missing children in migration,
>take due account of their obligations in assigning the number “116 000” to an organisation capable of providing the high-quality support needed for all missing children.
EU institutions and agencies: Awareness should be raised on existing networks, reporting tools and existing cooperation mechanisms, also through expert meetings and tailored funding, aiming at ensuring the sustainability of the results of previous projects. Cross-border case management services and information sharing should be developed to effectively channel information between NGOs and national child protection systems across borders and to ensure that the best interests of the child remains central in the management of international missing cases. The development of standard operating procedures and joint investigations is also essential in combating crime against the person, including trafficking. With regard to the aforementioned hotline for missing children, the European Commission’s proposal for a Directive establishing a European Electronic Communications’ Code (COM (2016) 590 final) provides for a new opportunity to strengthen the provisions regarding the service operated through 116 000 across member states. The proposed new Article 90 (1) which emphasizes Member States’ obligations should be kept as such. In addition, measures needed to achieve the ‘effet utile’ of the Directive should be considered so as to ensure delivery of the necessary quality of the service from the organisation to which the number is assigned . Due efforts should also be undertaken regarding the review of transposition and implementation of the Directive.
10. Any personal data of children should be used exclusively for the sake of protection, never in the aim to manage migration or return of children
Eurodac is not a data system designed to protect children or manage cases of missing migrant children, as its primary purpose is for management of migration, including the return of asylum seekers under Dublin and irregular migrants. The existing tool for missing children included in the Schengen Information System (SIS), when and if adapted to managing cases of missing migrant children across national borders, could be a useful instrument to ensure protection across border only if data on children is used exclusively for protection. Putting forward a dual purpose which includes managing return, as pursued in the ongoing reform, contradicts evidence on the reasons for migrant children going missing, and puts them at risk of rights violations. Furthermore, this will discourage reporting of a missing cases for fear of the consequence that this will have on the child and of the use of data included in the report. It is essential for strict operational limitations to be implemented and enforced on collection of data, access to and use of data and data retention. Any personal data including fingerprints of children should be used exclusively for the sake of protection, never in the aim to manage migration or return children. Necessary child protection safeguards in this respect should be included in the implementing regulations of all European data systems that hold data on migrant children. Appropriate rules on the collection of data, access to the data and its use, and data retention should be enforced.
Member states should ensure strict operational limitations in line with data privacy and child protection are in place, and monitor their implementation in practice. Steps should be taken towards a ‘firewall’ to ensure that personal data on children collected in the context of child protection or the provision of public services cannot be accessed for immigration purposes.
EU Institutions and agencies should ensure child protection safeguards in the revision of Eurodac and SIS. Tools for the protection of children across borders, like the SIS, remain to be used exclusively for the purpose of protection, never within the aim to manage migration or return children. Data on children should be stored separately in these systems with restricted access, to ensure that data is used exclusively in their best interests.
7 cross-cutting recommendations on the overall policy framework, data and funding
1. An EU Action Plan on all refugee and migrant children is necessary
An EU Action Plan on all refugee and migrant children is necessary to coordinate actions and mobilise resources. It would represent EU commitment at the highest level, effectively bring together the various responsible authorities, agencies and civil society in Member States and in the EU, and develop tangible and resourced processes and actions for all refugee and migrant children. Within this framework, national action plans could be developed on promoting the well-being of all refugee and migrant children, and the impact of every aspect of migration and asylum policy and practice on children systematically addressed. The EU has several tools at its disposal. The Action Plan on Unaccompanied Minors 2010-2014 provides a useful foundation and many of its priorities remain relevant. However, the next Action Plan should expand its focus to all refugee and migrant children and bring together the EU’s internal and external policy tools. A rights and needs-based approach will enable a response that takes into consideration specific aspects such as gender, ethnic origin, religion, health and disability.
2. The reform of the Common European Asylum System should improve the situation of refugee and asylum-seeking children
The ongoing reform of the Common European Asylum System offers a significant opportunity to improve the situation of refugee and asylum-seeking children. Guardianship, best interests assessment, the definition of family, age assessment, and criteria for obtaining international protection for child related forms of persecution are key elements of the instruments under reform, which also provide for quicker access to education, preferably within 30 days of a child’s arrival. These provisions should be maintained and strengthened in the negotiations. Due attention should be paid to harmonising and speeding up the processes of family reunion, resettlement and relocation. Compliance with identification and registration procedures will be improved if children see their rights guaranteed within the system. There is an opportunity to bring EU asylum law in line with international standards by prohibiting the detention of asylum-seeking children and families. On the other hand, proposals to punish onwards movements with material and procedural restrictions on rights, reinstating the concept of sending children to the country of first arrival or a third country, thereby dismissing existing jurisprudence, and limiting the rights of beneficiaries of subsidiary protection and the length of residence permits, would violate children’s rights and push more children and families into destitution and irregularity. These provisions must therefore be changed. The European Commission, the European Parliament and Council of the European Union must ensure that any reforms guarantee the highest level of protection for children.
3. Any decision on return must be based on children’s rights
Return is increasingly presented as a key pillar of the EU’s asylum, migration and foreign policy. Any decision on return must be based on children’s rights, not a political agenda, and include an individual determination of the child’s best interests. The impact of cooperation with third countries of the rights of children must be assessed and addressed. Any future reform of EU law and policy on return, including the update of the EU Action Plan on Return, must ensure essential safeguards for children and families, and prohibit the use of immigration-related detention.
4. Policies should be matched with resources
Policies should be matched with resources. Funding needs to be made available to support an innovative, integrated response by the European Commission, member states and civil society both within and outside the EU. Various EU financing instruments could earmark resources to address issues related to refugee and migrant children. Investment is needed to support both mainstream and targeted services to ensure the rights of refugee and migrant children in the countries where they are residing, regardless of the length of time. EU and national agencies dealing with refugee and migrant children should receive adequate funds to invest in capacity-building on child rights and sound referral mechanisms. The Commission should work with member states to monitor how EU funds are being spent, making sure that EU funds are targeted towards the best interests of children. EU funds should be used in line with EU policy and the guiding principles of human rights law, including non-discrimination, as also enshrined in the Charter of fundamental rights of the EU.
5. Common approach concerning all children should be in both the Global Compacts
A common approach concerning all children, regardless of status, should be included in both the Global Compacts, namely that for safe, orderly and regular migration and that on refugees. States have commitments to “comply with our obligations under the Convention on the Rights of the Child” (New York Declaration, para. 32) and the comprehensive and rights-based approach called for by the Committee on the Rights of the Child should be respected, not be fragmented, through the Global Compact process.
6. Principles on integrated child protection systems should be at the heart of the strategy on children in migration
The European Commission 10 principles on integrated child protection systems should be at the heart of the comprehensive strategy on children in migration expected from the European Union. Integrated national child protection systems in the EU and in third countries should be established and strengthened in line with the UN Convention on the Rights of the Child and the 10 principles. Discussions and actions around the EC Recommendations on Investing in Children, justice, health, education, human rights, development and youth employment should all systematically include the specific situation of all refugee and migrant children, and advance their equal access to protection, public services (e.g. education, health) and justice.
7. Collect and publish better and disaggregate data
Collect and publish better and disaggregate data. There is a real lack of disaggregated data on refugee and migrant children in Europe. For example, there are only a few countries where the number of children in immigration-related detention is publicly available. Cooperation among authorities, but also with the European Commission and Eurostat is needed to increase visibility, reliability, comparability and timeliness. Member states should regularly collect - at a minimum - age, gender, disability and nationality disaggregated data (on arrivals, asylum, relocation, family reunification, detention, voluntary return and forced removal), and make it publicly available. Member states should use the full potential of the Statistics Regulation (Regulation EC/862/2007) with a focus on disaggregation by age, gender, disability and residence status. The available data and evidence should be used to inform the development and reform of policy and practice.
Download the conclusions here.
Organisations that endorse these conclusions:
147 Rat auf Draht
ASGI - Association for Legal Studies on Immigration
Child Helpline International
Child Rights Consult
Child Rights International Network (CRIN)
Dedalus Social Cooperative
Defence for Children-ECPAT Netherlands
Don Bosco International
European Network of Migrant Women (ENOMW)
FONDAZIONE MUSEKE ONLUS
Fundación ANAR (116000 hotline in Spain)
Global Campaign to End Immigration Detention of Children
HOPE FOR CHILDREN CRC POLICY CENTER ICMC Europe
Immigrant Council of Ireland
INTERNATIONAL SOCIAL SERVICE (SWITZERLAND)
Irish Refugee Council
Istituto Don Calabria
Lasten perusoikeudet - Children´s Fundamental Rights ry
MALTA EMIGRANTS COMMISSION
National Institute for Childhood, President's Foundation for the Wellbeing of Society Malta
PICUM-Platform for International Cooperation on Undocumented Migrants
Save the Children
SOS Children's Villages International
Terre des Hommes
Terre des Hommes
The Children's Society
The Salvation Army
The Salvation Army, (EU Affairs Office)
The Salvation Army, Sweden and Latvia
The Smile of the Child