ESTONIAN MIGRATION FOUNDATION EUROPEAN MIGRATION NETWORK UNACCOMPANIED MINORS IN ESTONIA

Transcription

1 ESTONIAN MIGRATION FOUNDATION EUROPEAN MIGRATION NETWORK UNACCOMPANIED MINORS IN ESTONIA TALLINN MAY 2009

2 TABLE OF CONTENTS 1. INTRODUCTION 3 2. REASONS FOR ARRIVAL IN THE COUNTRY OF UNACCOMPANIED MINORS 6 3. ENTRY INTO THE COUNTRY Related legislation Related bodies Crossing of border by unaccompanied minor Procedure scheme and activities of the related authorities Trafficked children Interviewing Identification STAY IN THE COUNTRY, CONDITIONS FOR ADMISSION Related legislation Related bodies Establishing of guardianship Accommodation Care Family reunification RETURN Related legislation Related bodies Compliance with the Directive 2008/115/EC SUMMARY 45 ANNEX 1 ANNEX 2 ANNEX 3 ANNEX 4 LIST OF LITERATURE AND SOURCES 2

3 1. INTRODUCTION This study "Unaccompanied minors in Estonia" is prepared for the European Migration Network (hereafter EMN) program. The purpose of the study is to provide an overview of the situation in the area of unaccompanied minors in the Republic of Estonia - the responsible authorities, related legislation and procedure scheme for reception if an unaccompanied minor is entering or is staying in the country. In accordance with the specifications of this research the main objective is to give an overview of the area of unaccompanied minors seeking asylum, but because Estonia has very little practice in the area of unaccompanied minors seeking asylum (only one unaccompanied minor has applied for asylum in Estonia), then the issue is extended to entry into or stay in the country of unaccompanied minors who are citizens of third countries. On the basis of the summarised research papers of the Member States of the European Union (hereafter the EU) the EMN will prepare a summarised report which by using a systematic comparative method, will set forth similarities and differences in the Member States regarding unaccompanied minors. The information received will allow the EU Member States better understanding and analyse of the situation and thereby facilitating to a future shaping of unified EU immigration and asylum policy in the area of unaccompanied minors. Structure of research The paper is divided into three main parts: 1. Arrival of unaccompanied minors in the country 2. Stay of unaccompanied minors in the country 3. Return of unaccompanied minors to country of origin. The introductory section provides an overview of the research objectives, structure and methodology of work. The second part presents to the reader the main reasons for the arrival of unaccompanied minors in the country. An unaccompanied minor may enter Estonia on four different bases: legal and controlled entry into the country, legal but uncontrolled entry into the country, illegal entry and minor who is applying for international protection. The experience of Estonia with unaccompanied minors seeking asylum, unaccompanied minors who are third-country nationals and unaccompanied minors who are citizens of the EU has been dealt with more elaborately. Furthermore, an overview is given of the direct and indirect reasons for unaccompanied minors arriving in Estonia as well as related statistical data. 3

4 The third section provides an overview of unaccompanied minors entering the country specifications for border crossings, related legislation and bodies, the scheme for the procedure of reception of an unaccompanied minor in the country and an overview of the activities of related authorities, trafficked children, interviewing and identification of unaccompanied minors. The fourth section provides an overview of the conditions for admission for unaccompanied minors to the country - the relevant legislation and related bodies, an overview is given of the appointment of guardianship, accommodation of and care for minors, as well as the right to family reunification. The fifth part is deals with unaccompanied minors who return home, an overview is given of the legal acts and authorities related to return as well as compliance of Estonian legislation with the Directive 2008/115/EC. The sixth part is the summary which analyse and summarises the situation with unaccompanied minors in the country and Estonia in the context of other European countries. Methodology This report has been prepared in accordance with the EMN II Study specifications and structure. From the methodological point of view this is research is a so-called secondary desk-research type of work, which uses existing public information and no new research or analysis was carried out for compiling the review. Experts of the corresponding field from the respective authorities have been interviewed for compilation of this paper. In this research uses the definition of unaccompanied minors from the European Union Council Directive 2001/55/EC of 20 July 2001, on minimum standards on temporary protection in the event of mass influxes of displaced persons and on measures to offset the efforts of the Member States in receiving such persons and bearing the consequences, Article 2 (f), which is - an unaccompanied minor refers to a third country national or stateless person below the age of eighteen, who arrives on 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 taken into the care of such a person, or a minor who is left unaccompanied after they have entered the territory of the Member States. As Estonia is not very experienced in the field of unaccompanied minors seeking asylum, the issue is extended to all unaccompanied minors who are nationals of a third country. 4

5 This research has been prepared in cooperation with various bodies and agencies - Citizenship and Migration Board, Border Guard Administration, Police Board, Ministry of Social Affairs, Ministry of Justice, Estonian Union for Child Welfare, Tallinn Family Centre and Institute for Human Rights. 5

6 2. REASONS ARRIVAL IN THE COUNTRY OF UNACCOMPANIED MINORS An unaccompanied minor may enter into Estonia in four ways: 1. Legal and controlled entry - the parents are aware of the child crossing the border; the child's documents are in order and the Border Guard allows the child to enter the country without hindrance. 2. Legal, but uncontrolled entry - the parents are not aware of the child crossing the border. For example, trafficked children or those who fall under Article 97 1 of the Schengen Convention. The Border Guard prevents the border crossing and transfers the child to the relevant authorities. The data of the mentioned minors is managed by the 1 st division of the Criminal Information Department of the Central Criminal Police. 3. Illegal entry - the parents may be aware or not aware of the child crossing the border. The Border Guard prevents the border crossing and transfers the child to the relevant authorities. 4. Asylum-seeker - the child informs at the border that he or she wishes to apply for asylum in Estonia. The Border Guard allows the child to enter the country and delivers him or her to the appropriate authorities. Asylum seekers who are unaccompanied minors As previously mentioned Estonia has very little experience in the field of unaccompanied minors seeking asylum. Since 1997 there has been only one minor asylum-seeker in Estonia - in That minor was a citizen of Armenia who attained the age of majority by the time of being granted the asylum. Thus, no fundamental conclusions can be made in this research regarding the tendencies and trends of entry into the country by unaccompanied minors seeking asylum. There have been 18 accompanied minors seeking asylum in Estonia since girls and 9 boys. Those accompanied asylum-seekers have arrived in Estonia from Afghanistan (2), Armenia (1), Azerbaijan (1), Iraq (5), Syria (2), Turkey (4), Uzbekistan (1) and Belarus (2). 3 Unaccompanied minors who are nationals of a third country According to the estimated number given by the Board of Border Guard about a thousand children enter Estonia daily 4, while in total the border is daily crossed by approximately 17, 000 persons (data of 2008) 5 1 The Schengen Convention, 14 June CMB data, CMB reply to Migration Foundation 6-2/ CMB data, CMB reply to Migration Foundation 6-2/

7 The reasons for the relatively large number are: - historical background. The Republic of Estonia was proclaimed on 24 February Estonia was a member of the Soviet Union from 1940 until 20 August 1991 when it regained its independence. The main migration flows to Estonia were just during this era. During the first years after the World War II, about 45,000 people arrived to Estonia in a year. Thereafter the number of immigrants decreased gradually, but the migratory flows continued up to the 1980s. By the time of restoration of Estonian independence about 500,000 foreigners had settled in Estonia during the period of Soviet occupation, amounting to nearly 35% of the total population of Estonia in According to Statistics Estonia the population of Estonia was 1,340,935 at the beginning of 2008, of them 83% were citizens of Estonia, 9% were people with undetermined nationality and 8% were citizens of other countries 7. Thus, the historical background of Estonia (i.e. connection with Estonia, relatives in Estonia) causes frequent border crossing at the border points in South East and North East of Estonia. - geographical location - People living in the border areas often cross the border several times a day to go to school or work, visit (grand) parents, and so forth. - agreement on visa simplification with Russia - the agreement on visa simplification between the EU and Russia, which aims to facilitate on a reciprocal basis obtaining of the short-term visas by the citizens of the EU and the Russian Federation in order to strengthen economic, cultural and scientific ties entered into force on In Estonia, it significantly simplifies the movement of Russian nationals to Estonia and vice-versa. - some exceptions in the register of border crossing of the Board of Border Guard, e.g. entry into the country of unaccompanied minors and accompanied minors is not registered separately. Unaccompanied minors who are nationals of the European Union Unaccompanied minors the EU citizens arrive in Estonia mainly for the study purpose. For example, under the policy of the student exchange program Erasmus, YFU, UWC (United World Colleges), ASSE (American-Scandinavian Student Ex-change). 8 4 Border Guard Administration data, as of 2009, spring 5 Border Guard Administration Information Day for journalists, R.Peets Population Law, Estonian Public Service Academy CMB home page, Statistics Estonia web site, 8 Ministry of Education and Research 7

8 Although the majority of unaccompanied minors who are nationals of the EU arrived in Estonia for studying, there are also those who arrive due to family reasons, for example one of the parents lives in Estonia and the other in another EU country. Since the number of minors travelling alone is ever growing, many of the tourism and transport service providers (e.g., shipping company Tallink and air transport company Estonian Air) introduced the child escort service to make the children s movement from one country to another as safe as possible. Numerically, it is not known how many unaccompanied minor citizens of the EU are travelling to Estonia in a year. 8

9 3. ENTRY INTO THE COUNTRY 3.1. Related legislation In Estonia entry into the country of unaccompanied minors is regulated by the following legal acts: Aliens Act The Act provides the definition of a minor. According to 4 1 a minor child is a person under 18 years of age. A person who is married, has a separate family or leads an independent life is not deemed to be a minor child.the Act also regulates procedures and exceptions for trafficked children. 9 Citizen of the European Union Act The Act governs stay and the bases for residence in Estonia for the European Union citizens and their family members. Identity Documents Act The Act sets lists the identity documents which the Republic of Estonia issues to the citizens of Estonia and aliens, and establishes the identity document requirement. State Borders Act Establishes the identity document requirement for minors who are crossing the border. Child Protection Act This Act provides the general principles for child protection (e.g., obligation to take into account the best interests of the child), defines the child's age (according to the Act, a child is a person under 18 years of age), lists internationally recognized children's rights and obligations, and regulates subjects organising child protection. Social Welfare Act The Social Welfare Act provides the organizational, economic and legal bases for social welfare in Estonia and regulates relations in social welfare services. 9 Aliens Act, special cases of issue of temporary residence permit

10 Granting Aliens International Protection Act The Act provides the definition of unaccompanied minors who are asylum seekers. According to 6 of the Act unaccompanied minor alien is an alien of less than 18 years of age who arrives or has arrived to Estonia without a parent or guardian or who loses a parent or guardian while staying in Estonia. The Act defines the persons who are considered as minor's family members. The Act provides for exceptions for an unaccompanied minor staying in the asylum. Also, in accordance with 18 of the Act the Citizenship and Migration Board may give priority to reviewing the applications of applicants with special needs or applicants who are unaccompanied minors or well founded applications. The Act also defines conditions for the stay of an unaccompanied minor asylum seeker. International law Important legislation concerning International law is presented in Annex. (Annex 3). Important Estonian legislation concerning International law is presented in Annex. (Annex 4) Related bodies Child protection is ensured by national, local government and community bodies. Entry into the country and start-up of initial procedures with unaccompanied minors is primarily dealt with by the state authorities. Public institutions involved in work with unaccompanied minors in Estonia: 1) Ministry of the Interior - the specificity of the area of unaccompanied minors in issues related to crime, migration and border crossing is within the area of administration of the Ministry of the Interior.. In the structure of the Ministry the following structural units are involved in dealing with unaccompanied minors: Migration and Border Policy Department, which develops and coordinates the country's citizenship, immigration, asylum, border control, border surveillance and foreign policy implementation, analyses and plans prevention of illegal immigration and illegal employment Order No 13 by the Minister of Internal Affairs dated n "Statutes of the Migration and Border Policy Department " 10

11 1) 1. Citizenship- and Migration Board (hereinafter the CMB) is a governmental institution under the Ministry of the Interior the key tasks of which are: organising Estonian citizenship issues, organising issues of free movement of people and labour, issue of identity documents, organising migration issues, organising international protection issues, visa issues, migration monitoring issues, and application of administrative coercion as well as organising issues related to readmission of persons. 11 The broader task of the CMB is defining of the legal status of the stay of aliens in the country and issue of documents in accordance with applicable order. The above mentioned tasks are performed primarily by following departments: Aliens Department, whose main task is to organise migration issues, free movement of labour and people, organise visa issues and carrying out the respective procedures. Refugees Department, whose main responsibility is to organise international protection issues and to carry out the respective procedures. The department analyses, plans and organises the work of international protection area and supervises it. 12 Migration Monitoring Department, whose task is to prevent spread of illegal immigration in the country and coordinate the activities of the regional migration bureaus, a total of five (Tallinn, Tartu, Narva, Pärnu, Jõhvi) and they are located in four regions (North, South, East and West). The CMB officials have been trained as follows in the field of unaccompanied minors: a oneday training was organised in The trainers were Anneli Viks (CMB official) and Lehte Roots (teacher of the Estonian Public Service Academy). Anneli Viks and Lehte Roots were trained as trainers of this subject in November 2001 during the SCEP program. 13 The training also involved 2 consultants from the Administrative Court, Triin Raag from the Ministry of Social Affairs, 2 people from Eesti Pagulasabi and the entire staff of the Refugee Department of the CMB. This means that there are currently two trained officials in the CMB Statutes of the Citizenship and Migration Board 2, 12 Statutes of the Refugee Department of the CMB CMB reply to Migration Foundation, 6-2/

12 1)2. Boarder of Border Guard is a governmental institution under the Ministry of Interior whose task is to verify the legality of the stay of aliens in Estonia 15, as well as to check incoming and outgoing people, and means of transport. As border operations for minors do not differ from the same for adults, person carrying out the control do not undergo specific training. However, the officials processing violations and applications for asylum are informed of the exceptions in procedure that must be taken into account if the participant is a minor. 16 1) 3. Police Board 17 is an organization under the Ministry of the Interior that manages and develops activities of the police, analyses legal order in the country, prepares the development plans and strategies of police and monitors the proper application of them. During the past 15 years the work with children and youth has been regulated at the Police Board with the following documents: 1994 code of Conduct for the Juvenile Police and working guidelines for Juvenile Police officials were prepared; manual for Juvenile Police officer; 2002 instructions for treatment of children who have committed an unlawful act and those who need help; instructions for treatment of children who have committed an unlawful act and those who need help (revised version); instructions for treatment of children who have committed an unlawful act and those who need help (revised version, with a new chapter - a child in need of assistance and protection), approved with order No 92 by Director General of the Police Board dated 18 March 2008; Police officers have received extensive trainings for dealing with children since 2003 regional police work and prevention trainings have introduced the specifics of work with children, including special requirements for carrying out proceedings, recognition of abuse, including human trafficking; bases for network cooperation, planning and carrying out of preventive action on the basis of the principles of network cooperation. Annually at least 30 officials are trained (in 2004 and 2005 respectively 120 and 60). Since the academic year 15 Border Guard Administration (BGA) home page 16 Border Guard Administration reply to Migration Foundation 6-2/ Police Board home page 12

13 2006/2007 the second level of police studies includes special treatment of children as a separate topic. 18 The structure also includes the Central Criminal Police, which performs the functions of Sirene bureau in Estonia. 19 2) Ministry of Social Affairs monitors and is responsible for the country's social development. The Ministry of Social Affairs is coordinating national child protection. In the Ministry of Social Affairs coordination of child protection is in competence of Deputy Secretary General for social issues, the daily child protection work is coordinated by the Welfare Department. Welfare Department At the end of 2003 the Council of the Baltic Sea States (CBSS) Secretariat made a proposal to the CBSS Committee of Senior Officials, that each State should appoint the point of contact for unaccompanied children and issues regarding trafficked children for the purpose of promoting international cooperation and cross-border problem resolving. On 3 March 2004 the representatives of the Ministries of Social Affairs, the Interior, Justice and Foreign Affairs as well as CMB met and decided that the function of the point of contact will be performed by the Ministry of Social Affairs. The direct tasks of the contact point are: - coordinating the national resources for assessing and reintegrating children crossing the border in the region; - being a bilateral point of contact for individual cases if other contacts cannot be found; - defining national procedure for actions in the cases of unaccompanied and trafficked children; - cooperating with the Secretariat of CBSS. At the same time it is foreseen that the contact point should: - refer the isolated cases or preventive issues to the appropriate authority; - monitor and enforce strategic processes on how to respond to the case of children leaving their home country; 18 Ensuring of children's rights in police, Märt Kõrgmaa, In Schengen Information System the data transmission and expansion takes place via the SIRENE office, which is also an international police cooperation center in Schengen area which enables Estonian authorized agencies to make queries to the Schengen Information System. 13

14 - monitor and inform politicians and the public of the problems of the topic of unaccompanied and trafficked children; - initiate a joint information gathering process; - inform the public about the cooperation of the Baltic Sea countries as well as national cooperation on this issue. 20 The contact point for unaccompanied and trafficked children is a part of the activities of the CBSS Working Group for Cooperation on Children at Risk. 21 Trainings on unaccompanied children (asylum seekers) took place in 2001 and They were attended by the representatives of the Ministry of Social Affairs and Illuka Reception Centre for Asylum Seekers. Trainings were conducted by the Danish Migration Board and Eesti Pagulasabi (member of the Estonian Red Cross). Since 2004 the official of the Ministry of Social Affairs responsible for coordinating the contact point for unaccompanied and trafficked children has participated in the meetings of the contact points for unaccompanied and trafficked children of the Baltic Sea States (usually once a year), as well as in other seminars related to the topic. 22 In 2009 the Ministry of Social Affairs has set up a mailing list of the officials working on subject. The Welfare Department of the Ministry plays a leading role in shaping social policy in other areas related to asylum policies. The main tasks of the Welfare Department are to prepare the legal acts concerning the asylum seekers and persons receiving international protection, participate in the European Union working groups, cooperate with national and international organizations, co-ordinate the work of Illuka Reception Centre for Asylum Seekers and support Illuka Reception Centre for Asylum Seekers in accommodating persons who have received international protection in local municipalities. 2) 1. Illuka Reception Centre for Asylum Seekers is an authority managed by the Ministry of Social Affairs which arranges reception of persons in need of temporary protection and asylum seekers and provision of necessary services to them during the asylum procedure. 23 3) Ministry of Foreign Affairs is responsible for the national foreign policy. According to section 60(1) of the Consular Act the main responsibility of the Ministry of Foreign Affairs is 20 Council of the Baltic Sea Action Plan Ministry of Social Affairs reply to Migration Foundation 6-2/ Illuka Asylum Seekers Reception Center 14

15 to take measures to protect the interests and rights of Estonian nationals and Estonian legal persons in foreign states. In the context of this paper the following bureaus of the Consular Department 24 t of the Ministry should be highlighted: 2nd Bureau (documents bureau) that organises communication of Estonian foreign representations with the Citizenship and Migration Board in issues related to identity documents, residents and work permits and persons staying in Estonia illegally, accepts from foreign representations passports of citizens of Estonia and alien passports of Estonia and other documents issued in Estonia for forwarding to competent authorities in Estonia; in cooperation with competent authorities organises expulsion of persons illegally staying in Estonia. 3rd Bureau (Schengen Bureau), which is involved in shaping Estonian visa policy, makes suggestions for the development, amendment and updating of appropriate legislation; manages information and makes suggestions for the prevention of undesirable persons entry in Estonia; co-ordinates issue of visas in Estonian foreign missions and monitors legality of the visa procedures; coordinates the work of competent authorities of Estonia related to visa proceedings. 4) Chancellor of Justice Implementation of the rights of children is supervised by the Chancellor of Justice, which is an operationally independent authority. According to Chancellor of Justice Act, reviews the legislation of general application of the legislative and executive powers and of local governments for conformity with the Constitution of the Republic of Estonia and the Acts of the Republic of Estonia, supervises over the activities of state agencies, including the constitutional rights and freedoms. 25 The Chancellor of Justice has the right to appoint a special adviser who specifically works with the rights of children. According to 19 of the Chancellor of Justice Act everyone has the right to turn to the Chancellor of Justice for the control of activities of state agencies, including for the purpose of ensuring respect for the persons' constitutional rights and freedoms. Thus, the Chancellor of Justice performs the duties of the Ombudsman. 24 Statutes of the Consular Department 25 Chancellor of Justice Act 1 15

16 5) Ministry of Justice 26 The main task of the Ministry is to design and implement national legal and criminal policy. There are no separate officials for the work with unaccompanied minors in the Ministry of Justice. The entire Criminal Policy Department is engaged in issues related to trafficking in persons in relation to the Development Plan on fight against trafficking in persons, and with the preparation of statistic reviews in the topic. Furthermore, the International Legal Assistance service is involved in the issue in the Ministry of Justice, which is the intermediator of documents in the event if criminal proceedings are under way (e.g., in relation to section or 173 of the Penal Code ) - the service forwards the requests, orders, procedural documents, etc Crossing of border by unaccompanied minors According to section 11 2 of the State Borders Act Identity document requirement of minor upon crossing state border an alien under 15 years of age needs not hold a travel document if he or she enters Estonia, stays in Estonia or departs from Estonia accompanied by a person in whose travel document the alien s name, date of birth and photograph and data concerning his or her visa or residence permit, if a visa or residence permit requirement applies to the alien in Estonia, are entered. If the minor is under 7 years of age, his or her photograph needs not be entered in the travel document held by the person accompanying the minor. Data concerning residence permit needs not be entered in the travel document held by the person accompanying the minor if the minor has a valid identity card issued by the Republic of Estonia and it is submitted together with the travel document held by the person accompanying the minor upon crossing the state border. If a minor who is at least 15 years old crosses the state border alone he or she must hold an unattested consent of the parent or legal representative indicating the personal data of the child, the reason for going abroad, the destination of its stay abroad and the time of stay (expected), contact information of the child's parent or legal representative, and personal data and the contacts of the receiver, if known. In April 2004 the Council of Europe complemented the EU handbook on the single frontier policy with the statement that the special attention of the border personnel must be given to 26 Ministry of Justice home page 27 Penal Code, 172 child stealing, 173 sale and purchase of children 28 Penal Code, 172 child stealing, 173 sale and purchase of children 29 Ministry of Justice reply to Migration Foundation 6-2/

17 both travelling minors accompanied by an adult escort and those without an adult escort. 30 To meet the Schengen acquis Estonia must also pay more attention to dealing with crossing of border by minors. For minimizing risks travel companies in Estonia have set restrictions for travelling of minors. For example, according to the rules of Estonian Air 31 the minors under 5-to 11-years of age are accepted on flights only under the following conditions: the escort service must be ordered in advance, the accompanying parent/guardian prepares all the necessary documents, assists with departure formalities and remains at the airport until the aircraft has taken off and at the airport of destination there is another parent/guardian waiting for the child. Children aged 5-11 travelling without an escort, may travel with a person who is not younger than 16 years and capable of taking care of the minor during the journey, who has been appointed by the child's parent or guardian. Similar conditions have been set by other tour operators. In accordance with the rules of the shipping company Tallink 32, minors under 15 are not allowed to travel alone. Minors under 15 may travel only with a parent or an adult guardian. If a minor younger than 15 years is travelling with an adult guardian, a parent must sign the laissez-passer, in which the adult's name and personal identification code are marked. 33 It means that an unaccompanied minor younger than 15 years may not cross the border without an escort, for this purpose the escort service offered by the transport or tourism company service may be used. In case if an unaccompanied minor is seeking asylum Unaccompanied minors who are aliens and who have no legal basis or valid travel document for entry in Estonia and wish to apply for asylum or for a residence permit on the basis of temporary protection in Estonia are authorized to enter into Estonia after the submission of the residence permit on the basis of the application for asylum or for temporary protection to the Board of Border Guard. Exceptions for border crossing - If the court has made a decision on the residence of the child, the child crossing the border still needs the second parent's consent, except in cases where parental rights are limited. 30 Decision of the Council, 2004/466/EU 31 Estonian Air home page 32 Tallink home page 33 Explanatory memorandum to the draft of the Government of the Republic Action Plan for Fight Against Trafficking in Persons for

18 - If there is a reasonable suspicion of child stealing, then the parent has the opportunity to go to the police to start the process (including in case of taking the child across the border against the wishes of the parent), and the possibility to get a court order even without the litigation. - A court order (court-appointed residence with one of the parents), which should be a simple procedure in 48 hours or enforceable determination of the child's legal representative or deprivation of rights of a parent. In the case of a dispute between the parents, which is to be settled in court, the minor can cross the border with a parent or legal representative, if the other parent has given notarised consent for this. - If one parent denies the border crossing with other parent in the interests of a minor (hazardous area) on reasonable grounds there should be a possibility to obtain a court order (including, without litigation) Scheme of procedure and activities of related authorities Activities and responsibility for the field of unaccompanied minors is divided between several different institutions. Scheme: Each agency will also take into account the circumstances of the child's entry into the country (whether the child is an asylum-seeker or just an unaccompanied minor). 34 Ministry of Social Affairs home page www2.sm.ee/lastekaitse/index.php? T = 1 & id = 26 18

19 Activities of the related authorities Activities of the Border Guard (BGA)- the border guard is obliged to check the minor's compliance with the requirements for border crossing and, if necessary, or in case of doubt, carry out a conversation with a minor or the accompanying person or, if necessary, contact the legal representative of the minor or his or her host in another country. The corresponding obligatory parts of the interview and the procedures for conduct are established by the Minister of Social Affairs. If the border guard discovers an unaccompanied minor, it has to prevent the border crossing and to identify the person. Generally persons are not held at the border points but delivered immediately to competent authorities (representative of the Police Board there may be exceptions, e.g. if the child is afraid of returning to home country and wishes to apply for asylum, the Border Guard Authority delivers the child to the CMB 35 ). 36 Border Guard shall be obliged to stop a minor from crossing the border, if there is a judicial decision or regulation, and to send the child back together with the accompanying person or contact a legal representative older than 15years. The abovementioned procedure is applicable for external border points (the documents are checked on the Schengen external border). 37 Activities of the Police Board - if an unaccompanied minor has entered into Estonia (crossed the border), and he was detained by the police for any reason he is treated on the same basis as minors permanently residing in Estonia (whether in accordance with the rules foreseen with Directive No 92 by the Director General of the Police Board of Instructions for treatment of children who have committed an unlawful act and those who need help ). In any case social department officials and child protection officers are involved. If during the proceedings the unaccompanied child claims that he or she intends to seek asylum, or, it appears that his or her stay is illegal, the officials of the CMB will immediately be involved in the case. 38 A child with search marking in the Schengen Information System according to Article 97 of the Schengen Convention is immediately accommodated to a social welfare institution on the basis of reference letter compiled in two copies at the police authorities. Upon placement of the child in a social welfare institution a marking of the social welfare institution is taken to the second copy of the reference letter, which includes the name and contact data of the 35 CMB reply to Migration Foundation, 6-2/ Border Guard Administration reply to Migration Foundation, 6-2/ Ministry of Social Affairs home page www2.sm.ee/lastekaitse/index.php? T = 1 & id = Police Board reply to Migration Foundation, 6-2/

20 authority that received the child and the name of the official who accepted the child. After the placement of the child into the social welfare institution the letter with the aforementioned note will be forwarded electronically to the Criminal Information Department of the Central Criminal Police (SIRENE Bureau). 39 From the point of view of the Ministry of Social Affairs (MoSa) - if an unaccompanied minor is seeking for asylum, the reception centre for asylum seekers administered by the Ministry of Social Affairs receives information almost immediately, depending on the speed of notification of the Border Guard or CMB. The reception has the obligation to arrange provision for needed services (housing, translation services, legal advice, access to education, etc.) to the unaccompanied minors, furthermore a representative is appointed for the unaccompanied minor by the proposal of the head of the reception centre. Unaccompanied minor asylum seeker may also request for an asylum inside the country, namely no information is received about the child from the border. The child has crossed the border legally, with an accompanying person and all the necessary documents and has not expressed the desire to apply for asylum. In this case the local government is also informed, because according to 4 of the Social Welfare Act, it is the right of every person who received international protection to obtain social services, social benefits and other assistance while staying in Estonia and all persons staying in Estonia are entitled to receive emergency assistance. Furthermore, according to the Child Protection Act of the Republic of Estonia the state of Estonia is obliged to assist all children in Estonia. 40 Activities of the CMB in case of applying for asylum the decision of entry into the country is generally within the competence of also the CMB due to the fact that the Border Guard has no competence for making the rejecting decision without the approval of the CMB.. Processing of an asylum application (identification of the itinerary, existence of the persecution risk and establishing justification, identification of permitted return, granting of or refusal to grant asylum or residence permit, documentation) is within the area of competence of the CMB. Among other things the CMB will assess whether the child s return is safe, that is to say, whether it could actually lead to degrading treatment, torture, or whether his or her life and freedom may be at risk due to armed conflict. 39 Instructions for treatment of children who have committed an unlawful act and those who need help, p Ministry of Social Affairs reply to Migration Foundation 6-2/

21 However, if an unaccompanied minor is at the border, he or she should be allowed to enter the country and delivered to the CMB. This means that in rejecting decision shall not be made for an unaccompanied minor by the Border Guard but the procedure is transferred to the CMB. If an unaccompanied minor has already crossed the border, then only the CMB deals with the child and in this case the Border Guard has no jurisdiction to decide over the matters of asylum. If the child is still at the border and there is a lack of documentation and/or bases for entry, then the Border Guard is the first who deals with it. CMB is included as soon as the child has in any way indicated that he or she does not want to go back home and is afraid, which means that he or she would like to apply for asylum. If it is possible to identify right on the border that this is definitely an unaccompanied minor child (children usually do not travel completely alone, but with some adults, who are not actually their parents or guardians, also a young adult may often look like an adult), then the Border Guard cannot accept the application for asylum. According to the Granting Aliens International Protection Act an asylum application is submitted for a child by his or her parent, custodian or guardian. It is therefore necessary to determine the child s guardian or custodian, who performs completes the application on the behalf of the child. However, if the child becomes of age before the end of the process, i.e. approximately during six months to a year, the child may perform all operations by itself. In such case the application can be accepted also by the Border Guard. The primary operations also include fingerprinting. Fingerprints are not taken from children who are younger than 14. In case if the child is of such age that it unlikely that he or she will become of age in six months, the Border Guard takes the an extra-procedural explanation from the child and transfers him or her to the Illuka Reception Centre for Asylum Seekers. Illuka Reception Centre can currently accept a child only if the CMB (or Border Guard) has received an application for asylum, and the CMB refers the child as an asylum seeker. In the centre age-appropriate care is organised and a guardian is appointed or a custodian is ordered through the court. Only after this can the CMB proceed with the substantive procedure Trafficked children In 2004 Estonia ratified the Additional Protocol to the UN Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. The Protocol establishes minimum standards which a country must meet to ensure protection of children's 41 CMB reply to Migration foundation 6-2/

22 rights in this area. The protocol is intended to strengthen cooperation between countries in fight against sale of children, prostitution and pornography and to develop related prevention. The protocol puts an emphasis on the need for rehabilitation and counselling for victims. In Estonia the rights and obligations of the victims of international human trafficking are governed with the Aliens Act and Penal Code. The amendments to the Aliens Act entered into force on , which provides the possibility of issuing the temporary residence permit for the victim or witness of a criminal offence relating to trafficking in persons. The amendment transposed the EU Council Directive 2004/81/EC of on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities. 42 According to the Aliens Act, an alien may be granted with temporary residence permit in case of considerable public interest for contributing to establishing circumstances leading to establishing the subject of proof of a crime if 43 : 1) he or she is a victim or witness in criminal proceedings, the subject of which is a criminal offence related to trafficking in human beings as mentioned in Council Framework Decision 2002/629/JHA on combating trafficking in human beings, 2) he or she has previously contributed to clarification of crime circumstances and crime proving or gave his or her consent to do so, and 3) he has severed all relations with those suspected or accused of a crime. In case of considerable public interest a temporary residence permit shall be issued with a period of validity of up to one year. Also in this case an applicant for the temporary residence permit is not included in the immigration quota. Applying for residence permits in such special cases the Prosecutor s Office or investigative body with an order from the Prosecutor s Office in case of considerable public interest on the basis of the chapter concerning aliens shall inform of the possibilities and conditions for issuing the temporary residence permit. By the decision of the Prosecutor's Office an alien has 30 to 60 calendar days of reflection period from the moment he or she is informed in the case of considerable 42 Aliens Act Pursuant to section 62 of the Law of Criminal Procedure Act the subject of proof: 1) the time, place and manner of commission of the criminal offence, and other facts relating to the criminal offence; 2) the necessary elements of the criminal offence; 3) the guilt of the person who committed the criminal offence; 4) information describing the person who committed the criminal offence, and other circumstances affecting the liability of the person. 22

23 public interest of the possibilities and conditions for issue of temporary residence permit, to come to a decision if he or she wishes to contribute to establishing the subject of proof of a crime. Minor or a person with limited active legal capacity may also be granted a residence permit on the grounds specified above, however, only in case if it corresponds to his or her rights and interests. As the Directive gives to the Member States the possibility to expand the circle of recipients of the residence permit for minors, in Estonia it is applied for the reason that victims of trafficking are often children and adults with limited active legal capacity. An unaccompanied minor alien who arrived in Estonia without a legal representative, or who while staying in Estonia has lost his or her parents or guardians, shall be placed in case of considerable public interest, for the period of review of the application for the temporary residence permit and upon issue of the mentioned residence permit for the period of validity of the residence permit with: 1) an adult relative, 2) a custodian or foster family, or 3) a welfare institution for children. In determining the unaccompanied minor alien's place of stay priority is given to the child s interests and rights. If possible, unaccompanied minors who are siblings are not separated from each another. 44 As at the beginning of 2008 no Estonian temporary residence permit has been issued to a victim of human trafficking from a foreign country for the period of criminal proceedings. An important amendment of the Penal Code made in 2007 was the amendment which entered into force on and which supplemented the definition of slavery ( 133) included in the Council Framework Decision of 19 July 2002 on combating trafficking in human beings (2002/629/JHA). Enslavement is now also the exploitation of helplessness condition or state of dependence on the offenders of a victim. Previously, section 133 of the Penal Code stated as slavery only violence or fraud due to which the manners of enslavement or trafficking mentioned in the Framework Decision were completely covered. Therefore, 133 of the Penal Code was supplemented with identifier "taking advantage of helpless condition of a person." Helpless condition may be related to the victim's dependence on the offender (e.g., a parent or legal representative and the child, doctor and patient). 44 Aliens Act

24 In 2008 the Institute for Human Rights 45 prepared a report on the situation of trafficked children in Estonia. The report was prepared in cooperation with the European Agency for Fundamental Rights (FRA) and will be published in May By the initiative of the Ministry of Social Affairs in cooperation with other relevant authorities developing of the guidelines for identifying of and assistance for victims of human trafficking was prepared in The guide also sets forth characteristics typical for minor victims and first assistance. The document is not intended for public use but only for a limited number of agencies Interviewing The police questions children less than 14 years of age according to section 70 of the Code of Criminal Procedure in the presence of social worker or psychologist. Victim support worker may be involved in the case if he or she has the qualifications of child protection, social worker or psychologist. A child may give an explanation for the circumstances of an offence. The child may write a statement by hand. 46 Questioning of an unaccompanied minor who seeks asylum is regulated in Granting Aliens International Protection Act in section 15(1) 5) 47 and 18 (4) 48. For ensuring uniform practice for the inquiry procedures the CMB has prepared a directive. That directive states that an applicant who is a minor is questioned, if necessary, only in the presence of the minor's parents or guardian or a person with specialised knowledge. During questioning of a minor his or her age and degree of maturity shall be taken into account. In the case of a minor the interview shall not last longer than four hours during one day. The applicant is questioned, if necessary, by an official of the same gender. 49 Identifying of a victim of human trafficking through interviews and monitoring of the minor's behaviour takes place on the basis of the Guidelines for identifying of and assistance for 45 Institute for Human Rights 46 Instructions for treatment of children who have committed an unlawful act and those who need help p.30, establishes the procedures after the submission of asylum application, one of the activities of which is taking a statement on circumstances regarding arrival at the border and application for asylum 48 establishes the review of the asylum application, in the course of which an applicant has an opportunity to personally give orally or in writing facts and explanations regarding circumstances relevant to processing of the application for asylum, including the circumstances that would prevent the applicant's expulsion from the country 49 CMB reply to Migration Foundation 6-2/

25 victims of human trafficking. It is necessary to identify victims for a number of reasons: for protection of victims, fighting the crime, and crime prevention Identification Unaccompanied minor person is identified on the basis of documents set forth in section 2(2) of the Identity Documents Act or foreign travel documents. The identity of an applicant who is younger than 15 years and unaccompanied minor who has not been issued a document mentioned in the Act, is identified on the basis of birth certificate and the statements of the legal representative. The identity of an unaccompanied minor who is an asylum-seeker is identified also on the basis of the above-mentioned criteria, but if the asylum application is filed by a person who does not hold documents mentioned in the Act, his or her identity is established on the basis of other documentary evidence. In the absence of such documents a person is identified on the basis of his own words or the words of his or her legal representative and the official receiving the application for asylum makes the corresponding note on it. 50 1) Determination of age If the Citizenship and Migration Board has reasoned doubts regarding the information provided by the applicant in respect of his or her age, medical examination for establishing his or her age may be conducted with the consent of the applicant or his or her representative If necessary, the CMB shall order an expertise for determining the age from the Forensic Science Institute. Also, the need for an expertise may occur in the course of legal proceedings, in this case the court the expertise will be ordered by the court. The Tanner & Whitehouse (TW-2) method is used to determine a person's age in Estonia. The method can be used in two places in Estonia: Tallinn Children's Hospital (children radiologist evaluates the results) and the Children's Clinic Hospital of the University of Tartu (children radiologist evaluates the results). These methods have been used in clinical practice to assess child development. 50 Government of the Republic Regulation No Procedure for application for, granting, extension and declaration of invalidity of residence permit of a refugee and person receiving additional protection and his family member, list of certificates and data to be submitted upon application and the procedure for entering data of residence permits to the identity, 3 25