Matthew Scott - JUFN20 Migration Law 2 February Particular (Social) Groups: with a focus on children

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1 Matthew Scott - JUFN20 Migration Law 2 February 2018 Particular (Social) Groups: with a focus on children

2 Particular groups, particular considerations Not all refugees are the same (!) Differences exist in terms of why people leave, how they present their claims, and how their evidence falls to be evaluated UNHCR produces guidelines on particular groups, i.e. children, women, people who fear being persecuted on account of their gender identity or sexual orientation These particular groups may have a well-founded fear of being persecuted for reasons of membership of a particular social group, but there is far more than the MPSG ground to consider

3 Overview of the lecture 1. Child specific forms of persecution 2. Doctrinal features of the MPSG ground 3. Children as members of a particular social group 4. Protection of children under other grounds 5. UNHCR guidance on agents of persecution, internal flight, exclusion Break 6. Complementary protection for children under the 1989 Convention on the Rights of the Child 7. Child-centred principles under the CRC 8. Child-centred measures at the CEAS level

4 1. The predicament of children in countries of origin, including childspecific forms of persecution Informed by a child-sensitive interpretation of the Refugee Convention, in light of the Convention on the Rights of the Child

5 No one puts their child in a boat unless the water is safer than the land (Warsan Shire)

Similar conditions may have different individual impacts, depending on, for example, age The term persecution involve(s) serious human rights violations as assessed with regard to the age, opinions,

6 Similar conditions may have different individual impacts, depending on, for example, age The term persecution involve(s) serious human rights violations as assessed with regard to the age, opinions, feelings and psychological make-up of the applicant UNHCR Guidelines on International Protection No. 8 [6] Psychological harm may be a particularly relevant factor to consider. Children are more likely to be distressed by hostile situations [UNHCR Guidelines No. 8 [16]

7 Children are vulnerable in armed conflict Risks include: Death Serious injury Disrupted education Recruitment Detention Being orphaned

Children suffer serious harm as a consequence of poverty Evidence of a risk of denial of economic and social rights can support a finding that the child has a well-founded fear of being persecuted

8 Children suffer serious harm as a consequence of poverty Evidence of a risk of denial of economic and social rights can support a finding that the child has a well-founded fear of being persecuted and can also indicate a risk of denials of civil and political rights as well UNHCR Guidelines No. 8 [14]

Risks include: Death Serious injury Disrupted education

forces States Parties shall take all feasible measures to

fifteen years do not take a direct part in hostilities.

9 Risks include: Death Serious injury Disrupted education Involvement in international crimes Recruitment into armed forces States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.

10 Female Genital Mutilation States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.

11 Bonded or hazardous labour

12 %20disabilities_program_low.pdf Intersectionality The UNHCR Guidelines on International Protection No. 8 [12] provide further details of the kinds of intersecting vulnerabilities that expose children to serious harm

13 But child-specific persecution must still have a connection to one of the five Convention reasons Is there a particular social group called child?

15 What makes a person a member of a particular social group? Immutable characteristic? Social perception? The fact that we re all persecuted?

16 2. Step 1: Doctrinal features of the MPSG ground

17 The preparatory works Swedish delegate proposes that particular social groups be included in the definition because examples of such persecution existed and there was a need to make the definition as clear as possible (see discussion in Zimmerman (2011) No actual clarity provided as to its meaning.

18 The UNHCR Handbook (1979) - What is this membership of a particular social group ground? - Eh we don t really know, but: (e) Membership of a particular social group 77. A particular social group normally comprises persons of similar background, habits or social status. A claim to fear of persecution under this heading may frequently overlap with a claim to fear of persecution on other grounds, i.e. race, religion or nationality. 78. Membership of such a particular social group may be at the root of persecution because there is no confidence in the group s loyalty to the Government or because the political outlook, antecedents or economic activity of its members, or the very existence of the social group as such, is held to be an obstacle to the Government s policies. 79. Mere membership of a particular social group will not normally be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground to fear persecution.

19 Vienna Convention on the Law of Treaties 1969 Article Ordinary meaning in context and in light of the object and purpose of the treaties Context? Preparatory works, preamble, text itself Object and purpose? general underlying themes of defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative

20 Early MPSG cases Matter of Acosta Interim Decision No 2986, I. & N. Decisions 211, BIA, 1 March 1985 Canada (Attorney-General) v Ward [1993] 2 SCR 689 Applicant A and Another v Minister for Immigration and Ethnic Affairs HCA (1997) 190 CLR 225 Islam v Secretary of State fo the Home Department and R v Immigration Appeal Tribunal and Secretary of State for the Home Department ex parte Shah UKHL [1999] 2 WLR

Acosta 1985 Facts not MPSG The characteristics defining the group were being a taxi driver in San Salvador and refusing to participate in guerrilla-sponsored work stoppages.

PSG = A group of persons all of whom share a common, immutable characteristic or one so fundamental that one should not be required to change them ejusdem generis Sanchez-Trujillo US Court of Appeals

21 Acosta 1985 Facts not MPSG The characteristics defining the group were being a taxi driver in San Salvador and refusing to participate in guerrilla-sponsored work stoppages. Neither of these characgteristics is immutable becasue the members of the group could avoid the threats of the guerrillas either by changing jobs or by cooperating in work stoppages. PSG = A group of persons all of whom share a common, immutable characteristic or one so fundamental that one should not be required to change them ejusdem generis Sanchez-Trujillo US Court of Appeals 9 th Circuit requirement of cohesiveness largely rejected elsewhere results in one standard applied by the 9 th Circuit and the Acosta standard applied elsewhere in the USA (case concerned young, urban, working-class males of military age in El Salvador) What unites the other four grounds?

Ward 1993 Facts not MPSG Endorsed Acosta s Protected characteristics approach MPSG should be interpreted in line with the general underlying themes of the defence of human rights and

The third branch of the definition is not applicable to Ward, since the group is associated in the present and membership is not unchangeable owing to its status as a historical fact As for the

22 Ward 1993 Facts not MPSG Endorsed Acosta s Protected characteristics approach MPSG should be interpreted in line with the general underlying themes of the defence of human rights and anti-discrimination that form the basis of the international refugee protection initiative Innate or unchangeable characteristic characterized by an innate or unalterable characteristic. The third branch of the definition is not applicable to Ward, since the group is associated in the present and membership is not unchangeable owing to its status as a historical fact As for the second branch, the INLA is a voluntary association... But I do not believe that this objective can be said to be so fundament to the human dignity of its members such that it constitutes a particular social group Voluntary association for reasons should not be forced to forsake [later challenge to voluntary association requirement] Association with former voluntary status that is immutable due to historical permanence

Applicant A 1997 Social perception approach Group cannot be defined by their shared experience of being persecuted MPSG identified by common attribute and a societal perception that they stand apart

23 Applicant A 1997 Social perception approach Group cannot be defined by their shared experience of being persecuted MPSG identified by common attribute and a societal perception that they stand apart Does not extend to groups that neither recognize themselves as a group nor are perceived as a group in society There is simply a disparate collection of couples throughout China who want to have more than one child contrary to the one child policy. Some may wish to have a child as soon as possible; some in the near future; and others in the distant future. There is no social attribute or characteristic linking the couples, nothing external that would allow them to be perceived as a particular social group for Convention purposes.

24 Shah & Islam 1999 Initial claim rejected as PSG not joined together with some degree of cohesiveness, cooperation and interdependence / reflecting US Sanchez-Trujillo approach House of Lords expressly chooses Acosta immutable characteristics approach over Sanchez-Trujillo PSG (appellants) = women in Pakistan accused of transgressing social mores who are unprotected by the tier husbands or other male relatives or; PSG (UNHCR) = individuals who believe in or are perceived to believe in values and standards at odds with the social mores of the society in which they live PSG (majority of Law Lords) = Pakistani women

25 Benefits and drawbacks of each approach Protected characteristics Doesn't capture, for example, students More consistent with a human rights based approach to the definition Social perceptions Capable of capturing a wider range of groups Difficult for decision-maker to evaluate social perceptions in country of origin Surely it would be more reasonable to expect the roller-bladers to take off their skates than to insist that they be granted a trump card on migration control to enable them to continue to roll James Hathaway in comment on Aleinikoff s paper on MPSG for UNHCR Global Consultations

26 UNHCR guidelines on MPSG Step 1: Immutable characteristic? Step 2: Social perception? UNHCR Guidelines on MPSG [13]

27 Qualification Directive on MPSG Article 10 Reasons for Persecution (d) a group shall be considered to form a particular social group where in particular: members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society.

28 The 2003 UNHCR expert roundtable PSG must not be interpreted so widely as to render other grounds superfluous No requirement that the group actually associate Group cannot be defined by fact of being persecuted Not every member of the group needs to face being persecuted in order to establish a well-founded fear of being persecuted for reasons of MPSG Adjudicating refugee claims based on MPSG involves a global appraisal for an individual s past and prospective situation in a particular cultural, social, political, and legal context, judged by a test which, though it has legal and linguistic limits, has a broad humanitarian purpose (Sedley LJ in Court of Appeal in Shah & Islam)

29 3. Children as members of a particular social group

30 Examples from the case law 1 children as the particular social group Children as the particular social group GAF (re) No V , [2999] CRDD No. 48, 21 February 2000 (violence by father) [ the applicant s vulnerability as a minor is an innate and unchangeable characteristic, notwithstanding that the child will grow into an adult minor simply stated by Court] and LQ (Age: immutable characteristic) Afghanistan [2008] UKAIT A person s age is an immutable characteristic. Although it changes constantly, one can oneself do nothing to change what it is at any particular time. Contrast with Lukwago v Ashcroft, 329 F 3d 157 (3 rd Cir. 2003) unlike innate characteristics, such as sex or color, age changes over time, possibly lessening its role in personal identity [children] represent an extremely large and diverse group, and children... Have a wide degree of varying experiences, interests and traits.

31 Examples from the case law 2 particular sub-categories of children as MPSG Russian disabled children and their parents - Tchoukhrova v. Gonzales, 404 F.3d 1181 (9th Cir. 2005), United States Court of Appeals for the Ninth Circuit, 21 April 2005 Young girls from Nigeria whose economic circumstances are poor - Ogbeide v Secretary of State for the Home Department (Unreported, IAT, Appeal No. HX/08391/2002, 10 May 2002) Orphaned children - Case No. AS/54991/2003, December 2003 Abandoned children MZJ (Re), No v , [1999] CRDD No. 118, 31 May 1999 Illegitimate children - EKD (Re), Nos. MA , MA , MA , [2001] CRDD No. 174, 21 December 2001 Children of an inter-clan marriage UZG (Re), Nos. T and T , [1997] CRDD No. 209, 2 September 1997 Second children (in China) such children are persecuted for what they are and not by reason of anythign they themselves have done - Chen Shi Hai (2000() 201 CLR 293 Family Aguirre-Cervantes v INS, 242 F 3d 1169 (9th Cir 2001) All cited in Foster, Refuge from Deprivation, 2007

32 4. Protection of children under other grounds

33 UNHCR view on relevance of other Convention grounds Race or nationality policies to remove children from parents; denial of nationality; denial of education or health services Religion failure to comply with religiously-imposed gender roles; imputed religion Political opinion imputed or actively held; UNHCR Guidelines on International Protection No 8 Child Claims

34 Case law KBA (Re), Nos T , T [2001] CRDD No. 56, 7 May 2001 (Risk to ethnic Russian children in Kyrgyzstan owing to general conditions plus mental health problems of mother) BNY (Re), Nos. TA , TA [2002] RPDD No. 223, 19 December 2002 (Bullying on basis of race in educational institution) SBO (Re) Nos. VA , VA , VA , VA [2003] RPDD No February 2003 (Bullying of ethnically Chinese children in Peruvian school depriving them of right to education Reference N03/46534, RRT, 17 July 2003 predicament of Sabean Mandean children in Iran All cited in Foster, 2007

35 5. UNHCR Guidelines on International Protection

36 UNHCR Protection Guidelines: A childsensitive interpretation of the Refugee Convention Already addressed the being persecuted for a Convention reason elements. Remaining elements include: Agents of persecution Internal flight Exclusion clauses

37 Agents of persecution militarized groups, criminal gangs, parents and other caregivers, community and religious leaders can the State provide sufficient protection? Effective investigation and appropriate punishment of perpetrators?

38 Internal flight Is there a part of the country where the child would not be persecuted? Is relocation to that place reasonable? Consider best interests factors age presence of family members reception conditions in state care institutions social perception of orphans

39 Exclusion clauses interpret restrictively recognize children as victims as well as perpetrators of violations Cannot be excluded if under age of criminal responsibility in that State can range from 7-18 CRC General Comment No 10 - not to lower the minimum age to 12 years and noted that a higher age, such as 14 or 16 years would be better for juvenile justice Consider mental state; duress; proportionality of exclusion

40 Break

41 6. Complementary protection for children under the 1989 Convention on the Rights of the Child

42 Case law Substantial case law from CJEU; ECtHR; and domestic level relating to best interests of the child in migration cases (see UNICEF/OHCHR, Judicial Implementation of Article 3 of the CRC in Europe) A relevant factor in Article 8 assessments see Maslov for example Neulinger v Switzerland (2010) para 131 Para 135 the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken of any relevant rules of international law applicable in the relations between the parties and in particular the rules concerning the protection of human rights there is currently a broad consensus including in international law in support of the idea that in all decisions concerning children, their best interests must be paramount

43 The best interests of the child preventing expulsion in some cases Return to the country of origin shall in principle only be arranged if such return is in the best interests of the child. Such a determination shall, inter alia, take into account: The safety, security and other conditions, including socio-economic conditions, awaiting the child upon return, including through home study, where appropriate, conducted by social network organizations; The availability of care arrangements for that particular child; The views of the child expressed in exercise of his or her right to do so under article 12 and those of the caretakers; The child s level of integration in the host country and the duration of absence from the home country; The child s right to preserve his or her identity, including nationality, name and family relations (art. 8); The desirability of continuity in a child s upbringing and to the child s ethnic, religious, cultural and linguistic background (art. 20). GenCom No. 6 para 84

44 Protection an expansive non-refoulement obligation encompassing socio-economic rights CRC General Comment No 6 Furthermore, in fulfilling obligations under the Convention, States shall not return a child to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child, such as, but by no means limited to, those contemplated under articles 6 and 37 of the Convention, either in the country to which removal is to be effected or in any country to which the child may subsequently be removed. The assessment of the risk of such serious violations should be conducted in an age and gender-sensitive manner and should, for example, take into account the particularly serious consequences for children of the insufficient provision of food or health services. (para 27)

45 Article 5 Directive 2008/115/EC (Returns Directive) potentially reflects this position When implementing this Directive, Member States shall take due account of: (a) the best interests of the child; (b) family life; (c) the state of health of the third-country national concerned, and respect the principle of non-refoulement.

46 Generally, unaccompanied children are granted residence permits, at least until they approach 18

47 7. Procedural and other safeguards informed by the CRC Principles Reception Procedure Qualification Directive

48 Four core elements of the Convention Best interests of the child Non-discrimination The right to life and survival and development The right to be heard

49 Definition of a child CRC Article 1 - a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier

50 CRC Article 3 The best interests of the child 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

51 Three-fold concept Substantive right The right of the child to have his or her best interests assessed and taken as a primary consideration Legal principle If a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child s best interests should be chosen Rule of procedure Whenever a decision is made that will affect a specific child, group of children or children in general, the decision-making process must include an evaluation of the possible impact of the decision on the child concerned UNHCR/UNICEF, Safe and Sound: What states can do to Ensure Respect or the Best Interests of Unaccompanied and Separated Children in / CRC Gen Com 14

52 A two stage process See Pobjoy 2015 Stage 1: What are the child s best interests? Views of the child Particular vulnerability The substantive rights of the CRC i.e. Education Life Freedom from violence Health Nationality Stage 2: Are there any other factors that outweigh those interests? Burden on party seeking to establish that argument Might be outweighed by the cumulative effect of other factors No other single consideration must be given more weight (Lady Hale in ZH Tanzania UKSC) General concern with immigration control insufficient Pobjoy, J.M. (2015) THE BEST INTERESTS OF THE CHILD PRINCIPLE AS AN INDEPENDENT SOURCE OF INTERNATIONAL PROTECTION, International and Comparative Law Quarterly, 64(2), pp

53 Guidance from the Committee on the Rights of the Child CRC General Comment No 6 on Treatment of unaccompanied and separated children outside their country of origin (2005) In the case of a displaced child, the principle must be respected during all stages of the displacement cycle. At any of these stages, a best interests determination must be documented in preparation of any decision fundamentally impacting on the unaccompanied or separated child s life. (para 19) Requires a clear and comprehensive assessment of the child s identity, including her or his nationality, upbringing, ethnic, cultural and linguistic background, particular vulnerabilities and protection needs (para 20)

54 8. Child-centred measures at the CEAS level all stages of the displacement cycle

55 Reception Conditions Directive 2013/33/EU Article 11 Detention of vulnerable persons and of applicants with special reception needs Mental and physical health Last resort and shortest time Best interests a primary consideration No prison accommodation Separated from adults Article 23 Minors Best interests of the child, including factors Play Rehabilitation Family accommodation Article 24 Unaccompanied minors Appointment of a representative Accommodation Tracing of family members Training of those working with children

56 The Procedures Directive /32/EU Recital 33 best interests Article 7 - Applications made on behalf of dependants or minors Application on behalf of a minor, or by a minor Article 15 interviews in a child-appropriate manner Article 25 Guarantees for unaccompanied minors Appointment of representative Specially trained officials Medical age assessments safeguards Best interests principle

57 Procedural points UNHCR Guidelines Priority processing unless with family members seeking asylum at the same time Initiation of family tracing if unaccompanied Appointment of an independent, qualified guardian Legal representation Opportunity to express account in own words and receive all information about the procedure Appropriate training of decision-makers Enhanced burden of proof on decision-maker Benefit of the doubt Appropriate procedures for age assessment

58 Qualification Directive Recital 18 best interests principle a primary consideration including views of child Recital 27 on internal relocation Recital 28 on child specific forms of persecution Article 20(5) best interests primary consideration when determining the content of international protection Article 31 Unaccompanied Minors Legal representation Accommodation Sibling unity Family Tracing Training for those working with children

59 Further reading UNHCR Guidelines on Determining the Best Interests of the Child 2008 UNCRC General Comment No 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration UNICEF/UNHCR, Safe and Sound: What states can do to ensure respect for the best interests of unaccompanied and separated children in Europe UNICEF/OHCHR, Judicial Implementation of Article 3 of the Convention on the Rights of the Child in Europe: The case of migrant children including unaccompanied children

UNHCR s Views on Child Asylum Claims Using international law to support claims from Central American children seeking protection in the US

UNHCR Asylum Lawyers Project November 2016 UNHCR s Views on Child Asylum Claims Using international law to support claims from Central American children seeking protection in the US The United Nations