RESPONSIBILITY TOWARDS ALBANIAN UNACCOMPANIED MINORS TRAVELLING ACROSS SOUTHERN BORDERS

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1 RESPONSIBILITY TOWARDS ALBANIAN UNACCOMPANIED MINORS TRAVELLING ACROSS SOUTHERN BORDERS Authors: Valbona Lenja, in collaboration with: Valbona Pajo Teuta Grazhdani Zini Kore Assessment of the Albanian context September 2015, Tirana, Albania

2 International Organization for Migration (IOM) This assessment report has been prepared by the International organization for Migration (IOM) in the framework of the project Foster social inclusion of Roma communities in Albania through targeted interventions for vulnerable children funded by the European Union and co-funded by IOM.Development Fund. The project is being implemented by Union for the Development and Integration of Roma Minority in Albania Amarodrom, and IOM. The content of this publication and the opinions expressed here are the sole responsibility of the authors and do not necessarily reflect the views of the European Union or the International Organization for Migration. IOM is committed to the principle that humane and orderly migration benefits migrants and the society. As an intergovernmental organization, IOM acts with its partners in the international community: to assist in meeting the operational challenges of migration, advance understanding of migration issues; encourage social and economic development through migration; and uphold human dignity and well-being of migrants. Tirana, September, 2015 Prepared by: Valbona Lenja in collaboration with Valbona Pajo, Teuta Grazhdani and Zini Kore Translated by: Enrieta Hasanaj Publisher: International Organization for Migration Mission in Albania Rruga Ibrahim Rugova, Nd.42, H.12, Apt.4 Tirana, Albania Tel: Fax: infotirana@iom.int Internet: International Organization for Migration This report is published without formal editing from IOM. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any former by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior written permission of the publisher. 2

3 A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. Korça, July 2014 Photo V. Lenja Convention on the Rights of Child, Article 20 (1) 3

4 Table of contents Acknowledgment 5 Abbreviations 6 Main definitions 7 Report structure 11 Chapter I- Introduction The phenomenon of emigration of unaccompanied minors to European Union countries Emigration of Roma population from Albania to European Union countries Purpose and specific objectives of assessment Methodology of assessment Main findings 19 Chapter II Legal and institutional framework relevant to child protection International instruments and domestic legislation on the protection of the rights of unaccompanied minors Institutional framework for the protection of children rights Addressing assessment topics in the national and international legislation Treatment of unaccompanied minors in national and international documents 30 Chapter III Findings from field assessment Situation and drive for migration of Roma families in Greece Prevention of separation and lack of accompaniment of children Experiences of minors in Greece Return and reception Reintegration 47 Chapter IV - Recommendations 55 Annexes 58 I. Data collection methodology 58 II. Reasons for need of discussion and action planning in relation to the treatment of unaccompanied and separated children 63 References 69 4

5 Acknowledgment This assessment was conducted as part of the project Fostering social inclusion of Roma communities in Albania through targeted interventions for vulnerable children funded by the Delegation of the European Union in Albania and co-funded by the International Organization for Migration (IOM). The project is implemented by the Union for Development and Integration of Roma Minority in Albania, Amaro- Drom and the IOM. It aims to prevent the emigration of unaccompanied minors coming from the Roma community to Greece and their consequent exploitation, as well as to support their social integration in the communities of origin. The authors wish to acknowledge the staff of a number of central and local institutions over their constant support in conducting this assessment. Special thanks go to the representatives of the Ministry of Internal Affairs, the Office of the National Anti-trafficking Coordinator and the General Directorate for Border and Migration of the Albanian State Police, the Ministry of Social Welfare and Youth, the State Social Service, the Albanian Agency for the Protection of Child Rights, the Ombudsman Office and PAMECA IV Mission in Albania. We would also like to especially acknowledge the Roma coordinators based in Korca, Bilisht, Gjirokastra, Saranda, Delvina, who provided their valuable contribution to the organization of interviews with the Roma community and presentation of the challenges faced by the community. Finally, this assessment was made possible thanks to the support of the project implementing team mentioned above. Special thanks go to Marsela Isaku, Project Manager on behalf of Amaro Drom for the assistance provided in conducting the interviews with the service providers in the regions targeted by the project, and the staff of IOM Tirana for their suggestions throughout all stages of the assessment. 5

6 Abbreviations ACP AMARO-DROM ARSIS BMP CAHROM CEAS CESS CPD CPU CRC DBM DNR Dublin III EASO EDF-RAN EMN ERRC FC FRAN FRONTEX IOM MSWY NPO PICUM RA RED RSSSO SOP SSS TDH TIMS UNDP UNHCR UNICEF Albanian Agency for the Protection of Children s Rights Union for Development and Integration of Roma Minority in Albania Association for the Social Support of Youth Border and Migration Police Ad Hoc Committee of Experts on Roma Issues Common European Asylum System Centre for Economic and Social Studies Commissioner for Protection from Discrimination Child Protection Unit at Municipality/Commune UN Committee on the Rights of Child General Directorate of Border and Migration Directorate for Nationality and Refugees Regulation EU No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person European Asylum Support Office European Document Fraud Risk Analysis Network European Migration Network European Roma Rights Council Family Code of the Republic of Albania FRONTEX Risk Analysis Network European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union International Organization for Migration Ministry of Social Welfare and Youth Non-profit Organizations Platform for International Cooperation on Undocumented Migrants Republic of Albania Regional Education Directorate Regional State Social Service Office Standard Operating Procedures for the Identification and Referral of Victims of Trafficking and Potential Victims of Trafficking State Social Service Terre des Hommes Total Information Management System UN Development Programme UN Refugee Agency UN Children s Fund 6

7 Main definitions Some of the main definitions used in this assessment report are as follows: Discrimination, according to Article 3 of the Law 10221/2010, On Protection from Discrimination, 1 is every distinction, exclusion, limitation or preference because of any cause mentioned in article 1 2 of this law that has as a purpose or consequence the hindering or making impossible the exercise, in the same manner as with others, of the fundamental rights and freedoms recognised by the Constitution of the Republic of Albania, with international acts ratified by the Republic of Albania as well as with the laws in force. Direct discrimination is that form of discrimination that occurs when a person or group of persons is treated in a less favourable manner than another person or another group of persons in a situation that is the same or similar based on any cause mentioned in article 1 of this law. Indirect discrimination is that form of discrimination that occurs when a provision, criterion or practice, apparently neutral, would put a person or group of persons in unfavourable conditions, in connection with the causes set out in article 1 of this law, in relation to a person or another group of persons, and also when that measure, criterion or practice is not objectively justified by a legitimate aim, or when the means of achieving that aim either are not appropriate or are not essential and in fair proportion with the condition that has caused it. Multiple Discrimination, according to the Commissioner for the Protection from Discrimination (CPD) in Albania, is a situation in which the individual experiences discrimination on more than one ground. An individual may not only belong to a certain minority, but also to a certain age group and, at the same, gender may add to the individual vulnerability to be a victim of discrimination. Emigration: The act of departing or exiting from one s country of origin, with a view to settling in another country (IOM, 2011, p.32; Government of Albania, 2010, p.22). Returned emigrant in the context of the Reintegration Strategy refers to the Albanian citizens returned from emigration through different forms of return, either forced or voluntary (Government of Albania, 2010, p.22). Returned migrant, as defined in the Law 9668/2006, On the Emigration of Albanian Citizens for Employment Purposes, (Article 2), is considered any Albanian emigrant returned to the Republic of Albania and intending to leave again or not, after he/she has stayed at least one year in the host country and at least one year in the Republic of Albania. This includes refugees repatriated voluntarily or by force, victims of trafficking, unaccompanied minors, war prisoners, and their family members. A returned migrant is also the Albanian citizen, who has been returned either voluntarily or by force from host countries to the Republic of Albania on grounds of failing to comply with the relevant documents or requirements applicable for the entry, presence or regular stay in the host countries, in line with readmission agreements, as well as their family members. 1 Official Journal No 15, 25 February 2010, protrav/---ilo_aids/documents/legaldocument/wcms_ pdf 2 In connection with gender, race, colour, ethnicity, language, gender identity, sexual orientation, political, religious or philosophical beliefs, economic, education or social situation, pregnancy, parentage, parental responsibility, age, family or marital condition, civil status, residence, health status, genetic predispositions, restricted ability, affiliation with a particular group or for any other reason. 7

8 Child: Article 1 of the Convention on the Rights of Child defines the child as every human being below the age of 18 years. 3 Further, according to Law /2010, On the Protection of the Rights of Child, child is every individual born alive, until 18 years of age. Where the age of the individual is not fully determined, but there are reasons to imply that the individual is a child, this individual shall be considered a child and benefit from this law until his/her age is fully determined. 4 Separated children, according to the General Comment No. 6 of the UN Committee of the Rights of Child 5, are the children who have been separated from both parents, or from their previous legal or customary primary care-giver, but not necessarily from other relatives. Unaccompanied children: According to the General Comment No. 6 of the UN Committee on the Rights of Child, are children, as defined in article 1 of the Convention, who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so. The Albanian legislation deals with the issue of unaccompanied minors from the perspective of foreign or stateless children who enter Albanian territory, while determining the safeguards and protection they are entitled to enjoy at the moment where the case is reported to the Albanian authorities. Unaccompanied children, as defined by the Law 108/2013, On Foreigners, (as amended), are foreign or stateless citizens below 18 years of age, who enter the territory of the Republic of Albania unaccompanied by anyone of major age who is responsible for them, according to law or customs and for as long as they are not effectively under the care of a similar individual. Included herein are also those minors who have been left unaccompanied upon entry in the territory of the Republic of Albania. 6 Child at risk: According to the Law /2010, On the Protection of the Rights of Child, 7 a child at risk is the child who has been denied or infringed the rights and protection granted by this law and other applicable legislation. Worst forms of child labour: As defined in the Convention 182 of the International Labour Organization 8, they are all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict; the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances; the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties or any other work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children. Return migration: The movement of a person returning to his or her country of origin or habitual residence usually after spending at least one year in another country. This return may or may not be voluntary. Return migration includes voluntary repatriation. (IOM, 2011, p.86; Government of Albania, 2010, p.22) 3 Comparative study, Abanian Legislation and the Convention on the Rights of Child, prepared by the Centre for Integrated Legal Services and Practice. Experts affirm that the text leaves the starting point of childhood open. If the Convention had adopted a stand on abortion or similar issues, its universal ratification would have been at risk. For the purpose of the Convention, childhood ends at 18 years of age, unless, under the law applicable in a certain country, majority is attained earlier. 4 Law No of , On the Protection of the Rights of the Child, Article 3, Definitions. 5 General Comment No. 6 (2005) of the Committee on the Rights of the Child, Treatment of unaccompanied and separated children outside their country of origin. 6 Law 121/2014, On Asylum in the Republic of Albania ; Law 108/2013, On Foreigners. 7 Law No of , On the Protection of the Rights of the Child, Article 3, Definitions. 8 Law 8774/2001, On the ratification of Convention No. 182, Worst forms of child labour, 1999, of the International Labour Organization, Official Gazette No. 23,

9 Child protection: According to the law on the Protection of the Rights of Child 9, it is the prevention of and response to child violence, abuse, exploitation and neglect, including abduction, sexual exploitation, trafficking, child labour and harmful traditional practices, such as mutilation of genitalia and child marriage. Roma minority is considered a linguistic minority in Albania. The Framework Convention on the Protection of National Minorities is applicable also on this minority group. 10 Legal representative is the caretaker or caretaking family, the person or the institution, that, within the powers granted by the law or the court of law, protects the interests of the child through the act or omission of juridical steps for and on behalf of the child. 11 Life projects, in the context of this assessment, refer to those initiatives that aim to develop the capacities of minors allowing them to acquire and strengthen the skills necessary to become independent, responsible and active in society. In order to achieve this, life projects, fully in accord with the best interests of the child, as defined in the Convention on the Rights of the Child, pursue objectives relating to the social integration of minors, personal development, cultural development, housing, health, education and vocational training, and employment. Life projects are a lasting solution for both host countries and the unaccompanied minors, meeting the challenges arising out of the migration. 12 Minors compulsory repatriation: According to the Law 9668/2006, On the Emigration of Albanian Citizens for Employment Purposes, this is the quick repatriation with no consequences that is conducted by state authorities, in line with the legislation into force, after noticing or receiving information on the employment of minors outside of the territory of the Republic of Albania. 13 Reintegration (in the context of return migration): Re-inclusion of the migrant into the society structures of his or her country of origin or habitual residence. (IOM, 2011, p.82; Government of Albania, 2010, p.23). Economic reintegration: In the context of return migration, the process by which a migrant is reinserted into the economic system of his or her country of origin, and able to earn his or her own living. In developmental terms, economic reintegration also aims at using the know-how which was acquired in the foreign country to promote the economic and social development of the country of origin. Cultural reintegration (in the context of return migration): Re-adoption on the part of the returning migrant of the values, way of living, language, moral principles, ideology, and traditions of the country of origin s society. Social reintegration (in the context of return migration): The reinsertion of a migrant into the social structures of his or her country of origin. This includes on the one hand the development of a personal network (friends, relatives, neighbours) and on the other hand the development of civil society structures (associations, self-help groups and other organizations). 9 Article 3 of the Law No of , On the Protection of the Rights of Child. 10 National Strategy for the Improvement of Roma Minority Living Conditions, endorsed by CMD No. 633 of Law on the Rights of Child, Article Council of Europe Recommendation CM/Rec (2007)9 of the Committee of Ministers to member states on life projects for unaccompanied migrant minors. 13 Law No.9668, On the Emigration of Albanians Citizens for Employment Purposes (amended by Law No of ). 9

10 Trafficking of minors: According to Article 128/b of the Criminal Code (as amended), trafficking of minors shall mean, the recruitment, sale, transport, transfer, hiding or reception of minors with the purpose of exploitation for prostitution or other forms of sexual exploitation, forced services or work, slavery or forms similar to slavery, putting to use or transplanting organs, as well as other forms of exploitation. Country of origin for a separated or unaccompanied minor is the country of citizenship or, in the case of stateless children, the state/country of habitual residence. Decision concerning custody: It is the decision of an authority concerning child care, including the right to decide over the child s residence and the right of access therein. 14 Victim of trafficking, as defined in the Council of Europe Convention 15, is that person who has been transported, recruited, transferred, harboured or received within a country or across the borders of a country by the use of threat, deception, coercion or other unlawful forms for purposes of exploitation. A child shall be considered victim of trafficking in humans even if this does not involve any of the means to recruit, transport, transfer, harbour him/her for purposes of exploitation. Age assessment determines whether the individual is an adult or a child. According to the European Asylum Support Office (EASO) 16 the best interest of the child should be placed on any other consideration in all actions undertaken. Child development: According to the Committee on the Rights of the Child, State Parties must interpret development in its broadest sense, as a holistic notion that includes and interconnects the physical, mental, spiritual, moral, psychological and social development European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children. According to the Convention in question, child is an individual of any citizenship, for as long as s/he is under 16 years of age and is not entitled to decide on his/her residence 15 Council of Europe Convention on the Action against Trafficking in Human Beings monitoring/trafficking/leaflets/victims/alb_victims.pdf 16 European Union: European Asylum Support Office (EASO), EASO Age Assessment Practice in Europe, December See at: 17 General Comment No. 5 (2003), General measures of implementation of the Convention on the Rights of the Child (Articles 4, 42 and 44, paragraph 6)

11 Structure of report The report has the following structure: The first chapter introduces the reader with the phenomena of child migration, the methodology and definitions used to conduct the assessment and write the report. The second chapter provides an analysis of the international legal documents concerning the protection of unaccompanied minors and their reflection in the Albanian legislation, in an attempt to highlight the actual achievements and shortcomings based on the three basic principles of child protection that include: 1.Non-discrimination; 2. The child s best interest in finding durable solutions that give consideration to the child s perspective; and 3. Protection and rehabilitation of the children victims of trafficking and abuse. Further, the chapter also looks at the institutional framework concerning child protection that enables the protection of unaccompanied minors. The analysis is based on a series of archive documents and secondary data provided by the Albanian public institutions, local and international organizations. The third chapter reflects the findings from data collection in the field in relation to the trends and motives of emigration of unaccompanied children from Roma community located in the regions targeted by the project (Korça, Devolli, Gjirokastra, Delvina and Saranda), in an effort to identify their needs, leading to a prevention of further emigration and development of a reintegration scheme for returned minors. Chapter four provides specific recommendations to the Albanian authorities and other involved stakeholders to improve the national system for minors identification and protection management. 11

12 1 Chapter Introduction 1.1 The phenomenon of emigration of unaccompanied minors to European Union countries 12 Emigration of unaccompanied minors toward the European Union countries is today a concerning and on-the-rise phenomenon. In its report of May 2015 that referred to EUROSTAT data, the European Migration Network (EMN) 18 affirmed that the number of unaccompanied minor asylum seekers in the European Union (EU) has been constantly increasing since 2010, reaching a total of 24,075 minors in 2014, or 4% of the asylum requests for the same year The majority of those seeking asylum are boys (86%), and 14% are girls. Around 65% belong to the age group between 16 and 17 years old and only a very small percentage of children under 14 is observed. When looking at the main countries of origin, they represent politically unstable states, with some of them marred by armed conflict. These include Afghanistan, Eritrea, Syria, Somalia, Gambia and Morocco. Further, the study notes that the number of non-asylum-seeking minors reaching the EU is unknown and there are very few member states offering data on children in this situation, which report of around 8,500 minors only for Real numbers, though, are expected to be much higher. Further, little is known even with regard to the situation of Albanian emigrating unaccompanied minors to EU countries. By the end of May , Italy reported the presence of 1,233 Albanian children or 15% of the total number of minors in its territory, ranking second after Egypt and leaving behind countries in conflict, like Afghanistan and Syria, etc. Around half of the asylum requests lodged in the United Kingdom in 2014 were from Albanian citizens under 18 years of age. 21 Likewise, other countries, including France and Germany have reported an increased presence of unaccompanied minors from Albania, who either have emigrated or asked for protection through the asylum-seeking process in these countries, using the free movement in the EU Schengen area since In 2014, 64 Albanian unaccompanied children returned from Greece to Albania 22. On the other hand, the EU member states are more than ever managing to identify the growing challenges concerning the presence of unaccompanied minors. From the EU perspective, there are four main identified strands of action. They include data collection, prevention of unsafe migration and trafficking of minors, reception and procedural safeguards in the EU, and the identification of durable 18 European Migration Network, May 2015, Policies, practices and data on unaccompanied minors in the EU Member States and Norway; Synthesis Report. 19 Referring to data published by Eurostat on 23 April Ministero del Lavoro e delle Politiche Sociali, Rapporto nazionale Minori Stranieri non accompagniati, dati del 31 Maggio 2015, Report%20MSNA% pdf 21 Workshop final report Effective responses to emigration of unaccompanied minors (UAMs) from Albania towards European Union Member States, 15 October, Tirana Albania (not published). 22 Hellenic Ministry of Interior, Administration and Reconstruction, March 2015, Athens, Trilateral meeting between the Hellenic Ministry of Interior, Administration and Reconstruction, IOM and the Albanian Ministry of Internal Affairs (meeting report- not published).

13 INTRODUCTION as reflected in the EU Action Plan on Unaccompanied Minors ( ). Minors protection and the principle of the child s best interest are integrated in all the Action Plan activities. 23 A systematic data collection and analysis is paramount as it provides guidance to identify adequate and long-term solutions to the challenges regarding the treatment of unaccompanied minors. It is for such reasons that the plan encourages the cooperation between both EU countries and countries of origin of the minors, so that more reliable information is gathered and criminal networks exploiting minors are prevented from acting. Along these lines, further cooperation with international organization would be recommended, as well as incorporating data in the annual migration profiles of every state. All member states recognize that prevention of unsafe migration and trafficking of children is the first step to effectively deal with the question of unaccompanied children. In this context, consideration must be given to the different reasons the minors leave their country or region of origin and come to the EU. According to the Plan, prevention of irregular migration and trafficking involves 4 principal areas: addressing the issue of migration of unaccompanied minors in other policy fields, such as development cooperation, poverty reduction, education, health and human rights, promoting awareness-raising activities and training relating to early identification and protection of victims targeted at those who are or will be in contact with children in the countries of origin and transit, promoting awareness-raising activities on the risks relating to irregular migration targeted at children and their families, supporting the development of comprehensive child protection systems and birth registration systems. In function of preventing unsafe migration and trafficking, the Plan foresees support for third countries to improve their legal and administrative capacities, aimed at identifying unaccompanied minor asylum seekers and the victims of trafficking (VoT), as well envisaging of the programmes offering specific assistance. When it comes to the EU reception and procedural guarantees, there is a notable effort by all countries to comply with the international legal obligations and admit unaccompanied minors into their territory, including, in particular, the asylum-seeking ones. Child protection involves their identification at the border or within the territory and placing them under adequate protection, division of adults from children, in order to prevent re-victimization, provision of accommodation and detention of minors in closed centres, only in exceptional cases. However, even member countries are faced with challenges like that of the correct identification of minors as such, their referral to protection services and provision of a wide range of services during their stay in these states. The current emigration state of the Albanian unaccompanied minors towards European Union countries requires in addition broader coordination between European Union countries and Albanian authorities in charge of managing migration in the country. There is a number of actions developing on the bilateral level, such as the following: Italy continues to conduct family and reintegration assessment from 2008 onwards, with the IOM support; an agreement has been signed between Great Britain and the Ministry of Interior of Albania on information exchange in relation to asylum and migration. 1 Chapter The return of minors, according to the EU plan, should be based on sustainable solutions and the minor shall either return and integrate in his/her country of origin, hence giving priority to the voluntary return, in respect of the protection measures foreseen in the Return Directive 24 ; or they shall be granted international protection or any other legal status and integrate in the host country or be resettled in another EU country. In terms of the durable solutions, there have been cases 23 Communication from the Commission to the European Parliament and the Council of 6 May 2010 Action Plan on Unaccompanied Minors ( ) [COM(2010) 213 final Not published in the Official Journal]. beings/jl0037_en.htm 24 Directive 2008/115/EC of the European Parliament and the Council of 16 December 2008, on common standards and procedures in Member States for returning illegally staying third-country nationals. 13

14 of cooperation between French, Norwegian, UK 25 and other authorities with the Albanian Border Police and the State Social Service on tracing the family origin in Albania, in function of building its socio-economic profile and establish whether it is in the child s best interest to return. Other EU countries like Belgium, the Netherlands are looking at the possibilities for an assisted voluntary return and reintegration of unaccompanied children. All parties concerned at the EU level and in Albania, however, will benefit from better coordination. 1.2 Emigration of Roma Population from Albania to the European Union countries The census of Roma Housing and People conducted by the Open Society for Albania in found that the Roma population counted a total of 18,276 individuals, most of them placed in the major country regions where income-earning opportunities are better, including Tirana, Korça, Fier, Elbasan, etc. Of this total number, Roma children consist of 37%, which is significantly higher than the share of 26% of children in the total population of the country, as reported by the results of the 2011 census. This census reports and confirms a series of features inherent to the state of Roma in Albania. Collected data indicate that the median age of the Roma population is 27 years old or almost 10 years younger when compared to the total population living in Albania, whose median age as reported by the 2011 census is 35.5 years old. Further, the census reports that 68% of the Roma families are typically faced with housing access uncertainty, which has serious effects on the psychological, social and economic conditions of this population. Around 46% of the Roma families, or about 2000, live in a one-room housing facilities. Around 16% of the Roma families have no access to drinking water inside or outside of the house, whereas only 31% have access to water supply within the household. At least 84% of the Roma families across the country have no access to warm running waters in the household premises, whereas 28% of them live in housing units that are not connected with the sewerage system, which poses a risk to the hygiene and health of the family members. On another note, 74% of the working-age adults are declared unemployed, in a figure that is dramatically high vis-a-vis the official unemployment record of the general population that, according to INSTAT, is around 15%. 49% of the Roma above 6 years of age are illiterate. The age group most affected by illiteracy is that from 18 years and above, with a ratio of 51% of the population. Of these, 48% report they have never attended school whereas 21% say they have dropped out before completing compulsory education. In view of such conditions, international emigration and, in particular, the seasonal movement to neighbouring countries has been considered as a strategy by the Roma community to address poverty and social exclusion 27. The outcome of such emigration, however, is varied for different groups. According to Gedeshi and Miluka (2012), migration to the country of origin of the Greek, Vlach, Macedonian and Montenegrin ethnicities has proven helpful for some of this group to improve their living standards, whereas international migration of Roma and Egyptians has only served the latter to ensure short-term survival or mitigate extreme poverty somehow, but it has Information provided by the State Social Service at the round table on Planning actions for the treatment of unaccompanied and separated minors, held at the Ministry of Internal Affairs, as part of the project under which this assessment was conducted. 26 Open Society Foundation for Albania, Census of Roma Housing and Population. censusi-i-banesave-dhe-popullsise-rome 27 UNDP, A Needs Assessment Study on Roma and Egyptian Communities in Albania.

15 INTRODUCTION failed to ultimately escape poverty and social exclusion. 28 The emigration of Albanian minors to Greece has been a phenomenon that marks its starting since the first migratory movements of Albanian citizens to the country in question in the early 1990s. However, Greek authorities have been faced with challenges in collecting information on the real number of unaccompanied minors in its territory, including the Albanian ones, due to the lack of an authority designate to collect data on the number of children in need of protection. There is a wide array of issues that have accompanied minors migration over the years. Accordingly, the World Organization against Torture, Greek Helsinki Monitor and other organizations have reported that during the period between 1998 to 2002, 502 Albanian children had disappeared from the state-managed Aghia Varvara institution, a centre that had been set up temporarily to accommodate children in a street situation (that is, mainly Roma and Egyptian) Chapter Almost a decade after the occurrence, the annual report of the Albanian Ombudsman for 2011 highlighted that Roma children constituted the most vulnerable group when it came to the risk of social exclusion, hence representing an insecure generation. On the other hand the United States 2012 report on the Trafficking in Persons stressed that a high labour exploitation rate is reported among Roma children. Often handed over in good faith to other families for financial profits, they were forced to beggary inside and outside the country. Geographic proximity makes Greece the main destination country for Roma children, where the latter are engaged in forced begging, prostitution and car-washing activities. Earlier empirical evidence 30 indicated that one third of the children in Albania were forced to engage in beggary by their parents, who had realized that taking their children with them to Greece or Kosovo 31 for such purpose was more cost-effective than sending them through third-parties. The situation became apparently easier with the granting of the free movement across the Schengen area, including Greece, after December 2010, while, at the same time, making it more challenging for trafficking and cross-border exploitation cases to be identified. The Roma community in the areas along the border with Greece is particularly exposed to labour exploitation and trafficking. Due to the economic recession of Greece and the overall perceived uncertainty in this country, an increasing return of the Roma family and unaccompanied minors from Greece has been observed over the years. Albanian border authorities reported 396 cases of returned unaccompanied minors in 2012, of whom, 238 had crossed over from the border with Greece, with their majority believed to be of Roma origin. Records from Greek authorities, however, report a fall trend in such figures for the last three years. This is a situation that requires a more in-depth analysis, since the minors often emigrate accompanied with their parents and are, afterwards, exploited for begging or forced street labour. Additionally, border authorities are not able to identify the number of unregistered and Greek-born Roma children who move in the direction of Albania irregularly and accompanied by adults without legal proof of the child-parent connection. Again, an accurate identification of minors from the Roma community or other ethnic minorities has been generally impossible, since it is not an integrated component into the border interview procedure, except for the cases in which the minors disclose themselves the minority group they belong to Gedeshi I, Miluka, J., Migrimi i romëve - A mund të maksimizojmë përfitimet e tij?, CESS, Tirana, September The Guardians against Trafficking and Exploitation - GATE Project final national report for Greece, October The project was funded by the European Commission s programme of Prevention of and Fight against Crime Home Affairs Directorate General and was implemented in Greece Italy, the Netherlands and Cyprus. 30 Emily Delap: 2009, Begging for Change, Anti Slavery International. 31 Reference to Kosovo should be understood within the context of the UN Security Council Resolution 1244 (1999). 32 According to IOM, with reference to the data issued by the Border and Migration Directorate, State Police, February

16 Generally speaking, the identification and referral of minors, particularly of those from the Roma community, has been poorly done in all Albanian border-crossing points. When identified as unaccompanied minors, they have been refused entry in the country of destination or, upon, return and initial contacts, these children have remained within the territory, with no proper follow-up. In some cases, the office of the Association for the Social Support of Youth (Arsis) has assisted both Albanian and Greek authorities to determine the identity of Roma minors, in order to enable their return to Albania. On the other hand, the lack of a proper identification and referral mechanism at the border prevents returning Roma unaccompanied minors from getting adequate support, as provided by the National Referral Mechanism for the Enhanced Identification of Victims of Human Trafficking in Albania 33 and in line with the child protection standards. Cross-border trafficking of children remains an issue in need of tackling by both Albanian and Greek authorities. Although the countries have signed and ratified the international agreement on the prevention, protection and integration of the minor victims or at risk of trafficking, the accord remains yet unimplemented, due to the lack of an implementing protocol. Moreover, after being placed in their original communities, minors may again face exploitation or be re-sent to emigrate, thus left trapped into a vicious cycle which they cannot escape. The response from both institutions and civil society in Albania to prevent emigration of the unaccompanied minors, in particular of those from vulnerable categories, has been almost non-existent. It was in the above context that the non-profit Union for the Development and Integration of Roma Minority in Albania, Amaro Drom, with the support of the International Organization for Migration started the project, Fostering social inclusion of Roma communities in Albania through targeted interventions for vulnerable children. Jointly funded by the European Union Delegation to Albania and IOM, this project aims to prevent the emigration of unaccompanied minors from Roma community to Greece and their exploitation, as well as to ensure social inclusion in their communities of origin. The project is implemented with the support of the Ministry of Social Welfare and Youth, Ministry of Interior, Ombudsman Office and PAMECA IV Mission to Albania. This assessment was conducted as part of this project. 1.3 Purpose and specific objectives of the assessment The purpose of this assessment was to identify migration trends among Roma minors towards Greece, to evaluate the measures in place at the local and central level on their referral and protection, in order to provide suggestions that will further improve relevant policies and legislation on the protection of emigrating unaccompanied minors, in particular, of those coming from vulnerable groups. The main assessment goals were: Collection and analysis of information concerning the emigration phenomenon of unaccompanied minors, in general, and among minors from the Roma community, in particular, in order obtain a clearer picture of the situation; Collection and analysis of data in relation to the international legal instruments for the protection of unaccompanied minors, and their reflection in the Albanian legislation, in an attempt to highlight shortcomings, relying on three main child protection principles: Cooperation Agreement for the Functioning of the National Referral Mechanism for Victims and Potential Victims of Trafficking in Persons, signed in 2005 and revised in 2012.

17 INTRODUCTION 1.Non-discrimination 2. The best interest of children when proposing durable solutions and in consideration of the child perspective, and 3: Protection and rehabilitation of children victims of trafficking and abuse; Review of the child protection system in Albania and of the protection it provides to unaccompanied minors, having as a purpose the suggestion of specific recommendations for the improvement of the system and the legislation; Collection of field information regarding the trends and motivations behind the emigration of unaccompanied minors from the Roma Community in the border areas targeted by the project, with an aim to identify needs to prevent further emigration from these communities. Elaboration of a reintegration scheme for returned minors; Development of an assessment methodology that can be replicated in the future to assess the vulnerabilities of the minors to cross-border labour exploitation. Consequently, the final assessment output was this report that reflects the findings from the situation of Roma unaccompanied children who emigrate to Greece, the risks posed by their exploitation for labour purposes, the institutional response to protect children in Albania, as well as specific recommendations to enhance such institutional response in favour of the protection of emigrant minors to Albania, in general. 1 Chapter 1.4 Assessment methodology The assessment methodology and identification of the information resources were result of the consultation with experts and representatives of MSWY, MoI, IOM and Amarodrom. This report was conceived in a descriptive form. The key principles for the protection of the rights of children during the cycle of emigration and return to Albania were picked up as the three topics around which information was collected in function of this assessment. They include hereby: 1. Nondiscrimination, 2. The child s best interest in finding durable solutions that give consideration to the child s perspective, and 3: Protection and rehabilitation of children victims of trafficking and abuse. For each of these topics, data was collected and interpreted from two angles: theoretical, including legal provisions, and practical, with focus on implementation. The main assessment topics, including the analytical document presented in the annexes of this report, mainly followed along the lines of the General Comment No. 6 (2005) of the UN Committee on the Rights of the Child, Treatment of unaccompanied and separated children outside of their country of origin, in connection with the implementation of the Convention on the Rights of Child. 34 The comment is applicable in the case of unaccompanied or separated children who find themselves outside the country of their nationality or, in case of statelessness, outside their country of habitual residence. The General Comment applies to all such children irrespective of their residence status and reasons for being abroad, and whether they are unaccompanied or separated. However, it does not apply to children who have not crossed an international border, even though the Committee acknowledges the many similar challenges related to internally displaced unaccompanied and separated children, recognizes that much of the guidance offered in this comment is also valuable in relation to such children. The Committee strongly encourages States to adopt relevant aspects of this General Comment in relation to the protection, care and treatment of unaccompanied and separated children who are displaced within their own country. 34 Ratified by Albania in February 1992 and incorporated in the Albanian legislation, mainly in the Law 10347/2010, On the Protection of the Rights of Child. 17

18 Comment No. 6 refers particularly to the treatment of children who are outside their country of origin, thus, it s only natural that the information is collected in the country of destination. Unfortunately, though, the resources made available to this project made it impossible to collect information on unaccompanied or separated children outside Albania by making use of the same methodology as inside the country (collection of field data). Where possible, however, information and secondary data was collected by Amaro Drom and IOM partner organizations that operate outside Albania (e.g., ARSIS). Literature review played a central role in the analysis of the situation of minors outside Albania. To that end, analytical reports prepared by the European Migration Network in the framework of the EU Action Plan on unaccompanied minors were used. Other information and data collection methods were used with regard to the situation in which foreign children find themselves in Albania, including literature review, individual interviews with employees of governmental institutions, both at central and local level, supporting agencies (considered to be at policy-making, operational an supporting levels), individual interviews and focus groups conducted with Roma families returned from Greece or with parent of Roma children, who, at the time of the interview, were unaccompanied in Greece. The interviews and focus groups were held from during the period of July-September A total of 30 individual interviews were conducted, with 41 participants 35 : 8 individuals at policy level, 28 individuals dealing with operations, and 5 individuals at the customer s level. Group meetings were organized in Gjirokastra and Saranda and were attended by adults from Roma Community. All the meetings with the parents of Roma unaccompanied children were facilitated by Amarodrom workers and Local Roma Coordinators, who helped to build trust in the people in charge of the assessment. 36 The initial field findings were presented during a national workshop on unaccompanied minors that was held in the framework of the same project in October 2014, in the course of which information valuable to the research was collected. The information collection process was used in some cases to clarify the notion of unaccompanied children, in order to increase attention towards this group of children and to identify the protection resources for returned children. Simultaneously with this assessment, IOM, together with several United Nations organizations to Albania involved in the UN Social Inclusion Programme, got engaged to collect information in favour of designing a profile of social inclusion/exclusion for unaccompanied children and those who are victims of trafficking. While applying a different information collection methodology and with a diverse geographic and demographic focus, the consultants facilitated information exchange among organizations, wherever it was possible, in order for the projects to strengthen their individual value. Such synergy was created with other IOM-implemented projects in the area of migration of unaccompanied children in Albania, as well, like that of family investigation with Italy, the project of voluntary return and reintegration with Norway, Belgium, the Netherlands and others. The purpose of such attempts was to deepen the analysis of the emigration situation and treatment of minors along all the links of the migration process and after the return, in particular. The outcome of this process was an in-depth analysis of the achievements and challenges of Albania in treating foreign and Albanian unaccompanied minors. The mentioned work is reflected in the analytical paper attached with this report, where specific recommendations on legal and policy interventions are reflected in function of enhancing protection of unaccompanied minors, both Albanian and foreigners, in the Albanian territory In some of the interviews there was more than one participant. 36 In some of the cases, there was a concern by Roma parents that the purpose of the discussion was either to punish them or return their children to Albania, hence the need for facilitation from Roma coordinators.

19 1.5 Main assessment findings INTRODUCTION General dilemmas in connection with the treatment of unaccompanied minors and future challenges One of the highlights of this assessment report was that there are differences between destination countries when it comes to their approach on unaccompanied children in terms of the communication they have employed so far in the minors return process to Albania. Part of the countries sends prior notice to Albanian authorities to inform them of the return of unaccompanied minors, who are Albanian nationals. They often conduct a pre-return assessment of the family situation, accompanied with a reintegration package. It frequently occurs that the assessment process is only formal since the decision on the return has been already made. Certain countries return minors without prior notices or an assessment of the family situation and without exchanging information according to the international child protection standards, such as in the case of Greece. This diversity of procedures in connection with the return of minors has stirred confusion among Albanian authorities over the very return standards. The most articulate dilemmas surfacing during the data collection include the following: Is it a right of the destination countries to return unaccompanied minors? Does the child s accompaniment or lawfulness of travel or stay constitute a safeguard for the protection of the child? Is there a proper balancing between the responses to the multitude of needs, particularly of that to preserve the visa-free regime across the Schengen area and the need of children for well-being and development? Should children emigrate for labour purposes? Are trafficked children receiving more assistance than the other children? Should parents who send away their children unaccompanied for a better life be punished and in what cases? Do re-admission agreements have to serve as regulatory for the treatment of unaccompanied minors? All the above are some of the dilemmas and challenges faced by Albanian authorities that require rapid answers, to ensure a more efficient protection of the minors who emigrate from Albania, especially when they belong to vulnerable community, such as the Roma. This report generated a series of findings presented below that followed along the chains of the migration chain: Prevention of emigration among unaccompanied minors Preventing emigration among unaccompanied children and its dangers thereof has been mainly limited to the actions and measures applied by the border and migration police. No awareness campaign has been yet conducted on preventing movement of Albanian unaccompanied minors towards the European Union countries. In the case of Roma community, the need arises to inform communities in their places of residence and in a language they understand, since many of the families and minors who were born in Greece speak only Romani and Greek. Statistics on Albanian unaccompanied children With regard to the Albanian unaccompanied children in Greece, the report finds that there is no certain and recognized figure of their presence there and a regular exchange of data on these children between the Greek and Albanian authorities is missing. Lack of regular records prevents, on the other hand, Albanian authorities from having a better picture of the phenomenon and, consequently, ensuring that it is efficiently addressed. 1 Chapter 19

20 Protection during the stay in Greece In 2012 Greece 37 faced many challenges in ensuring protection to unaccompanied minors. Issues arose from the border, where Greece lacked adequate mechanisms for the identification of individuals in need of international protection, minors included. Other distinct shortcomings included also lack of an efficient age-assessment system for minors, a missing detailed procedure to refer, minors to protection mechanisms and shelters, limited human resources, missing information for minors in connection with their rights, and many other issues. Problems were reported also in relation to the case management system, since the care system seemed dysfunctional due to legal gaps and a non-existent foster care system for unaccompanied minors, etc. Moreover, a cumbersome bureaucracy, scarcity of funds and accompanying personnel for the minors was quite present, further affecting the care system for these minors. Problems were additionally encountered with receiving the stay permit, accessing the education system due to the lack of proper monitoring, poor education level of the minors or even illiteracy, their preference to working rather than going to school, and others. In 2014, the European Migration Network (EMN) 38 ranked Greece among the EU countries that offer the possibility for minors to be accommodated in specialised centres and even in foster families. Greece is also positioned among the countries enabling voluntary return of unaccompanied minors, together with a reintegration package. It fails however to be considered among those countries that undertake a pre-return assessment of the socio-economic family situation. The country is also recognised for the possibility to place in detention minors who are subject to a pending return procedure. Return to Albania Evidence collected in the course of this assessment and the project indicated that, although in very small numbers compared to previous years, returns of Albanian unaccompanied minors continue to be realised mostly with reference to the police agreement of 1992 or to the Readmission Agreement with the EU. However, since a bilateral protocol is not in place between the two countries, the latter is not applied and the return of Albanian citizens from Greece mostly occurs in the framework of the agreement between the Government of the Republic of Albania and the Government of the Hellenic Republic of Greece on the Cooperation of their Ministries of Public Order, based on their Competencies, signed in 1992 and entered into force in , which foresees the return and readmission at the border of the Albanian citizens with irregular stay in Greece. Subsequently, the return of the Albanian unaccompanied minors from Greece within the framework of this agreement is compulsory and indistinguishable both in form and content from the return of adults, hence constituting an infringement of the international standards and principles concerning the treatment of unaccompanied children, in particular of the child s best interest, special protection and protection from abuse and exploitation. Regardless of all, however, there are cases of return fully complying with international standards conducted in close coordination with Albanian child protection authorities. There is, in general, a need to ensure better coordination between Albanian and Greek authorities in function of the return and reception of Albanian unaccompanied minors or even those supposed to be born to Albanian parents According to the final GATE project report on Greece, October 2012, Enhancing the Protection of Unaccompanied Minors in Greek Territory The Guardians Against Trafficking and Exploitation. The project was funded by the European Commission s programme of Prevention of and Fight against Crime Home Affairs Directorate General and was implemented in Greece Italy, the Netherlands and Cyprus. 38 European Migration Network, May 2015, Policies, practices and data on unaccompanied minors in the EU Member States and Norway, Synthesis Report. 39 Agreement between the Government of the Republic of Albania and the Government of the Hellenic Republic of Greece, on the cooperation of their ministries of public order, based on their competencies, 1992.

21 INTRODUCTION 1 In those cases where unaccompanied minors are forcible sent back, the return is mostly disorganized and with no prior notice to the Albanian authorities. Border-crossing points designed to return deported individuals, minors included, are mainly depending on the location they are apprehended/identified in Greece. The information sent to the Albanian party is merely limited to a simple list of names of the citizens to be returned, including minors. The pre-return verification conducted by the Greek party in the case of the adults and minors returning is reportedly focused on detecting and apprehending those individuals who are suspect of being involved in criminal activities, rather than on identifying the family of origin in Albania and carrying out a subsequent socio-economic evaluation to establish whether it is in the child s best interest to stay in Greece or return to Albania. Application of such procedure, with no distinction from that applicable to adult individuals, creates the grounds for a continued breach of the international standards for the treatment of unaccompanied children returned to Albania. Additionally, field information has indicated that there is a significant number of children born in Greece who have been returned along with their parents, without being registered or having proof of the parent-child relationship, who, as a result, can be considered as permanently unaccompanied or separated. Their return generates a perpetual violation of their fundamental protection rights. Consequently, it might be affirmed that there are potentially dozens of minors who find themselves in an extremely vulnerable state of exposure to exploitation and trafficking, for the very lack of civil registration. Chapter Protection upon return to Albania The process, timelines and guidance to conduct assessments and take decisions regarding returned minors have been determined in a Joint Directive of the Ministry of Internal Affairs/General State Police Directorate and the Ministry of Social Welfare and Youth/ State Social Service 40. The directive considers for a fact that a readmission request is sent by the country of destination, while time is taken to conduct a proper assessment, which is the case with the returns from Greece. Meeting of the basic needs of the unaccompanied child immediately upon return is left at the resources available to the police officers and family members. There are no adequate conditions to accommodate children at the border crossing points (BCP). The costs of reception at the BCP and transportation of the minor to their families or any other accommodating destination following return are mostly covered by the members of the child s family and the border police officers. In the case of returns from Greece, ensuring the well-being and protection of minors from abuse or exploitation is only limited to the communication of State Police operational centres and the verification the child s family location. The process is concluded with the notification by the side of the police and arrival of the parent to pick the child up at the BCP. In the case of returnees from Roma community, communication is facilitated by the so-called local community coordinators, who help with the identification of the minor s family. In a de jure perspective, unaccompanied minors are deemed to be vulnerable to trafficking and re-trafficking. Establishment in details of the identification process for victims of trafficking among unaccompanied minors in the Standard Operating Procedures (SOPs) 41 has led to a traditional attention and expertise being given to the children victims of trafficking, but, on the other hand, it has reduced concentration on and efforts to offer children an equally adequate treatment and be proactive in protecting their rights. There is not yet any measuring of the SOPs effectiveness in terms of the identification of victims of trafficking in the liberalized visa regime. However, no cases of victims of trafficking have been identified among unaccompanied children deported from Greece. 40 Joint Order On taking measures for the reception and social treatment of unaccompanied minors returning/ readmitted from other countries. 41 Standard operating procedures for the identification and referral of the victims and potential victims of trafficking, endorsed with CMD No. 582 of

22 Reintegration of minors upon return The current child protection system in Albania fails to ensure community reintegration services for the returning minors. Their situation is similar to that of all the categories of minors returned to Albania, irrespective of whether they come from a vulnerable group. The Units for the Protection of the Rights of Children (CPU) at the local level are not involved in managing the cases of returned minors. Even worse, this category is almost out of their focus, except for specific cases referred by public institutions (as, for example, when there is violence in his/her family of origin, etc). The child protection mechanism stakeholders on the central level, such as the Albanian Agency for the Protection of the Rights of Children, have not been engaged so far in any monitoring of the situation of unaccompanied minors who emigrate from Albania to the European Union countries. In the case of returning unaccompanied minors from the Roma community, parents of unregistered children receive active assistance from the Amaro-Drom local coordinators to register them, but given their scarce financial possibilities, irregularity of documents or a rooted mindset of not being able to make it on their own, they stay passive and wait for assistance from various organizations to ensure registration of their children. The situation the Roma children and families tend to escape from and the return is filled with challenges related to housing and living conditions, employment and education, which, in turn, stem from and generate discrimination and exclusion, as well as result into a violation of the other rights and principles of child protection. 22

23 Analysis of legal and instiutional framework relevant to child protection 2 Chapter This chapter presents the findings of the review of international legal instruments dealing with unaccompanied minors and their reflection in the Albanian legislation. Likewise it offers an analysis of the functioning of national institutional mechanisms that ensure the identification, referral and protection of unaccompanied minors. 2.1 International instruments and national legislation on the protection of the rights of children The international human and children rights protection instruments that cover also the emigration of unaccompanied minors, and are ratified by Albania, include: Universal Declaration of Human Rights 42 International Covenant on Civil and Political Rights 43 United Nations Convention on the Rights of Child 44 Convention for the Protection of Human Rights and Fundamental Freedoms 45 Social European Charter (revised) 46 Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (CETS No.201) 47 Council of Europe Convention on Action against Trafficking in Human Beings (CETS No. 197: 2005/2008) 48 Convention on Contact Concerning Children (ETS No. 192: 2003/2005) 49 Convention on Cybercrime (ETS No. 185: 2001/2004) 50 European Convention on the Exercise of Children s Rights (ETS No. 160: 1996/2000) Approved by the UN General Assembly on 10 December 1948, adhered to in Ratified by RA with Law No.7510 of Ratified by the RA Council of Ministers on 27 February Ratified by RA with Law No of Ratified by RA with Law No of , entered into force on Entry into force on Entry into force for RA on Entry into force on Entry into force on Ratified by Law No of , entry into force on

24 European Convention on the Legal Status of Children born out of Wedlock (ETS No. 085: 1975/1978) 52 European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children (ETS No. 105: 1980/1983) 53 European Convention on the Adoption of Children (ETS No. 058: 1967/1968) ILO Convention No.138 on Minimum concerning Minimum Age for Admission to Employment 54 ILO Convention No.182 on concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour 55 The Hague Convention of 1993 on the Protection of Children and Co-operation in Respect of Inter-country Adoption 56 The Hague Convention on the Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 57 The Hague Convention on Civil Aspects of International Child Abduction 58 Convention on International Access to Justice 59 The Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance 60 European Convention on Contact with Children 61, Council of Europe Convention on Preventing and Combating Violence against Women and Domestic violence 62 UN Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict 63 and on the sale of children, child prostitution and child pornography 64 Optional Protocols of the International Covenant on Civil and Political Rights, October 2007 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, June 2007, The Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance Entry into force in RA on This Convention has not been signed and ratified by Albania. For more information, see: coe.int/treaty/commun/listetraites.asp?cm=3&ma=999&po=alb&si=4&cl=eng&mnu=88&mnu= Ratified in According to the Convention, the minimum age for employment shall not be lower than the age upon completion of the compulsory education and, in any case, not under 15 years old. 55 Ratified in Ratified by Law No of Ratified by Law No of Ratified by Law No of Ratified by Law No of Ratified by Law No. 63 of Ratified by Law No of Ratified by Law No.104/ Ratified by Law No of Ratified by Law No of Ratified by Law No.63 of

25 ANALYSIS OF LEGAL AND INSTIUTIONAL FRAMEWORK RELEVANT TO CHILD PROTECTION National legal instruments relevant to children include: Constitution of the Republic of Albania, approved with Law No of ; Law No of , The Civil Code of the Republic of Albania ; Law No of , The Family Code of the Republic of Albania ; Law No of , The Civil Procedure Code of the Republic of Albania ; Law No of , The Labour Code of the Republic of Albania ; Law No of , On the Protection of the Rights of Children ; Law No of , On Protection from Discrimination ; Law No of , On Measures against Violence in Family Relations ; Law No of , Criminal Code of the Republic of Albania ; Law No. 69 of , On the Pre-university Education System in the Republic of Albania ; Law No of , On Civil Registry. 2 Chapter 2.2 Institutional framework relevant to the protection of the rights of children Along with defining clear safeguards for children, the legal framework enlists a series of institutional mechanisms whose specific functions and responsibilities are to ensure concrete protection of the rights of children. Of particular interest in this respect is the Law on the Protection of the Rights of Children of 2010 that provides for the establishment of structures that guarantee and protect the rights of children both at the central and local level. Centrally, there are three structures in charge of protecting the rights of children: The National Council for Protection of Child Rights a consultative ad hoc body that evaluates the state of observation of children s rights in Albania and, along with the review of state policies and programmes for the protection of the rights of children, issues recommendation for the Albanian Agency for the Protection of the Rights of Children; The Minister coordinating work on the issues relevant to the protection of the rights of children (currently, the Minister of Social Welfare and Youth); Albanian Agency for the Protection of the Rights of Children its mission is to monitor the implementation of the Law on the Rights of Children and guarantee the cooperation among various state and non-state stakeholders in function of ensuring an effective protection of the rights of children and their care. As we write, the agency has not been involved in the monitoring of the situation of unaccompanied minors emigrating from Albania to the European Union countries. Locally, for every local government unit (municipality, commune, region) the law provides the establishment of: Unit for the Rights of Children at the regional council; The Observatory for Children s Rights of Children has been established across the 12 regions of the country, and it is a civil society structure that cooperates with national authorities. 25

26 Child Protection Unit at the municipality/commune. CPUs are responsible for the assessment and monitoring of the children at risk, identification of cases and multidisciplinary coordination, referral and analysis of the cases within the territory of the municipality/commune, as well as for the organization of /awareness raising activities at the local level (Article 39 of the law). It is true, however, that the Child Protection Units at the local level have not yet managed cases of returned unaccompanied minors, except for some specific cases referred by public institutions (e.g., where there is violence in the family of origin, etc). Due to the establishment of structures at both levels, the law has foreseen that their functions relevant to the implementation of law and state policies for the protection of the rights of children are performed on the basis of the principle of cooperation between them and with nonprofit organizations. 67 Other structures relevant to the protection of the child rights have been established and exist in a number of local government units, with one of them being the Child Labour Monitoring Committees, set up with the support of the International Labour Organization (ILO). 2.3 Addressing topics of assessment in the perspective of the national and international legislation As stated in the section about the methodology, this is a descriptive assessment report. The main principles of protection of the rights of children during the cycle of emigration and return to Albania were chosen as the three topics around which information was gathered for this report. They are: 1. Non-discrimination, 2. The child s best interest in finding durable solutions that give consideration to the child s perspective, and 3: Protection and rehabilitation of children victims of trafficking and abuse. Given below is a review of the legal national and international provisions for each of the topics. Topic 1 Non-discrimination The UN Convention on the Rights of the Child, Article 2(1) provides that States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. Elaborating this further, the second paragraph of this article follows that States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child s parents, legal guardians, or family members. The prohibited elements of discrimination are the same with those enlisted by the International Covenant on the Civil and Political Rights. Considering its wording, Article 2 is a broad statement against discrimination and the phrase or other status, being non-exhaustive in nature, intends to include other elements relevant to discrimination that have not been specifically mentioned in Article 2(1) Coordination of their activity on issues related to the protection of the rights of child, as provided in this Law, is determined by the Council of Ministers Decision No. 266 of , On coordinating the activity of central and local mechanisms in connection to the protection of the rights of children.

27 ANALYSIS OF LEGAL AND INSTIUTIONAL FRAMEWORK RELEVANT TO CHILD PROTECTION The right to non-discrimination is also enshrined in the Constitution of the Republic of Albania. Article 18 provides an anti-discrimination clause, specifying that no one may be unjustly discriminated against for reasons such as gender, race, religion, ethnicity, language, political, religious or philosophical beliefs, economic condition, education, social status, or parentage. Such wording is an expression of the approximation of the constitutional provision with the stipulations of Article 14 of the European Convention on Human Rights, as well as with Article 2 of the Convention on the Rights of the Child. 2 Chapter The Civil Code of the Republic of Albania, Article 1, stipulates that everyone is entitled to enjoy full and equal rights within the limits defined by law, which, although deemed as a similar but not identical provision, constitutes the basis for child non-discrimination in terms of being granted their rights as subjects of the civil legal relations. The principle of non-discrimination is also reflected in Article 9 of the Labour Code of the Republic of Albania, with the latter enshrining the equality and non-discrimination in working relationship. This is a right guaranteed to all citizens and, as such, also to the children over 16 years of age who are admitted to employment in line with the requirements set out in this Code. Denying the equality to citizens is a criminal offence provided by the Criminal Code of the Republic of Albania, Article 253, which, conducted by a worker holding a state function or public service because of his capacity or during its exercise, on grounds of health conditions, leads to unfair privileges or refusal of a right or benefit deriving from law, is punishable by a fine or up to five years of imprisonment. Further, Article 11 of the Code of Administrative Procedure provides that the principle of equity and proportionality must be observed by the public administration in the relations with private individuals, meaning that no one should be privileged or discriminated inter alia because of their social conditions. The principle is valid, applicable and protects the child not only as a direct subject in the administrative relationship but also as a subject affected by the former or the administrative decision-making. In the New developing Code of Administrative Procedure it has been observed that the principle of equality is no longer reflected. In this respect, the Commissioner for Protection from Discrimination has recommended that the principles of equality and discrimination be an integral part of the principles underlying this Code, as key guidance for the activity of any public body or private entity that exerts public functions. 68 Law No of , On the Protection from Discrimination, elaborates specifically on Article 18 of the Constitution. This is the organic law on the basis of which protection from discrimination is ensured. Its purpose is to ensure the right of any individual to equality before the law and equal protection by the law, equality of the chances and possibilities to exert the individual rights and freedoms, as well as an effective protection from discrimination. Further the law regulates the enforcement and observance of the principle of equality for a series of enlisted motives that are non-exhaustive. The law has served as the basis for the establishment of the Commissioner for the Protection from Discrimination (CPD), as a public legal entity who is independent in the exercise of the proper duty as the responsible authority that ensures effective protection from discrimination and any other behaviour that encourages discrimination. The principle of equality and non-discrimination on special grounds is foreseen in other laws, including Law No of , On Gender Equality in the Society that prohibits discrimination on gender grounds, as specified in Article 6, Law No of , On the Protection of the Rights of Child that eliminates all forms of discrimination against or punishment of a child, as well as Law No of , On the Measures against Violence in Family Relations. 68 Annual report of the Commissioner for the Protection from Discrimination,

28 It is therefore evident that the international legal framework against discrimination (minors included) is widely reflected in the Albanian legislation. Topic 2 A Child s best interest for durable solution and in consideration of the child s perspective A child best interest has been described by Article 3 of the Convention on the Rights of the Child. Further elaborating on the concept, Comment No. 14 of the Committee on the Right of Child holds that the child s best interest is threefold: (a) a substantive right: The right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake, and the guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general. Article 3, paragraph 1, creates an intrinsic obligation for States, is directly applicable (self-executing) and can be invoked before a court. (b) A fundamental, interpretative 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. The rights enshrined in the Convention and its Optional Protocols provide the framework for interpretation. (c) A rule of procedure: Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. 69 The Convention provides for situations where the principle of the child s best interest should serve as the main focus of the decision-making process, such as, for example, in Article 9 (1),(3) (separation from parents), Article 18 (parental responsibility), Article 20 (deprived of family environment, Article 21 (adoption), Article 37 (c) (restriction or deprivation of liberty), Article 40 (2) (b) (iii), hearings when adjudicating a minor. These are typical situations in which the rights stipulated by the Convention compete with one another and the role of the child s best interest is that of the main filter between the right of the child vis-a-vis that of the parents, like in Articles 9, 18, 20, or the right of the former vis-a-vis that of the public to protect himself from criminal activity, as provided in Articles 37 and 40. The best interest of the child appears as the sole guarantor of the right to be brought up in a family environment, where the adopting adult shall present himself as complementary and in function of the right of the child, not as an individual who has the right to take and bring up a child. 70 The child s best interest has found no expression in the Constitution. It appears, however, that main law of Albania has a solution that, although generic, creates all the required room to adjust the issues mentioned above. In particular, Article 122 (1) of the Constitution stipulates that any ratified international agreement constitutes part of the internal legal system after it is published in the Official Journal of the Republic of Albania. It is directly applicable, except when it is not self-executing and its application requires the adoption of a law. This provision is of particular relevance to the protection of the rights of children because, even when the national legislations has got gaps, like the missing principle of the child s best interest in the Constitution itself, it may find direct application as part of the UN Convention on the Rights of the Child both in the administrative and judicial decision-making. 69 UN Committee on the Rights of the Child (CRC), General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), 29 May 2013, CRC /C/ GC/14, available at: 70 Ibid 28

29 ANALYSIS OF LEGAL AND INSTIUTIONAL FRAMEWORK RELEVANT TO CHILD PROTECTION In the context of Article 3 of CRC, it is obvious that the child s best interest is a self-executing norm, whose application may be required to be observed by the power of law in every procedure and decision, both administrative and judicial. Additionally, stemming from Article 122(2) providing that an international agreement ratified by law has priority over the laws of the country that are incompatible with it is the obligation of law-making bodies to consider this principle and all CRC rights and obligations in the course of the legislative process that involves the rights of children. 2 Chapter The Family Code of the Republic of Albania 71 has been developed on the underlying philosophy of respecting and safeguarding the best interest of the child as a primary consideration (Articles 2, 218, 240). Law No.7895 of , Criminal Code of the Republic of Albania, as amended by the Law No. 144/2013 constituted a novelty in terms of introducing the principle of child s best in Article 1/c. Law No of , On the Protection of the Rights of Child, (Article5(1)), enshrines the best interest of the child as a prevailing consideration in all decisions involving children that are made by public or private providers of social care, courts, administrative or legal authorities. The principle of the child s best interest is also found in the Law No 9695 of , On adoption procedures and the Albanian Adoption Committee (Article 2/b). Considering the child s perspective The right of the child to be heard has been granted by Article 12 of CRC. According to the first paragraph: States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. The second paragraph states: For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. The Committee for the Rights of the Child identifies Article 12 as one of the four basic principles of the Convention, emphasizing that the article is not only a right per se but has to be considered in the interpretation and implementation of all the other rights 72. The principle of respecting the view of the child, in accordance with his/her age and maturity is one of the basic principles provided in the Law No of , On the Protection of the Rights of the Child (Article5(6)). The Joint Directive of the Ministry of Internal Affairs/General State Police Directorate and the Ministry of Social Welfare and Youth/ State Social Service, On taking measures for the reception and social treatment of unaccompanied minors returning/readmitted from other countries, (January 2014) does not take any reference to the willingness of the child to return. Topic 3 Protection and rehabilitation of the children victims of trafficking The Constitution of the Republic of Albania, approved by the Law No of , distinguishes children as a category entitled to special protection from the State (Article 54(1)). 71 Law No.9062 of General Comment No. 12 (2009) of the Committee on the Rights of the Child, the right of the child to be heard, available at RighttoBeHeard_0.pdf 29

30 The positive action of the state is extended to measures that rule out any kind of danger faced by the child, including violence, ill treatment, exploitation, and from performing any work, especially under the minimum age of child labour, which could damage his health and morals or endanger his life or normal development (Article 54/3). On the other hand, there is a series of provisions in the Criminal Code that address issues in relation to criminal offences perpetrated against children, with Article 124/b, Maltreatment of minors punishing coercing, exploitation, encouragement, or the use of a minor to work, to obtain income, to beg, or to perform actions that damage his/her mental and/or physical development, or education with two to five years of imprisonment. When severe health damage or death of the minor has resulted, it is punishable by ten to twenty years of imprisonment. On the same note, Article 128/b, Trafficking of minors establishes that the recruitment, sale, transport, transfer, hiding or reception of minors with the purpose of exploitation for prostitution or other forms of sexual exploitation, forced services or work, slavery or forms similar to slavery, putting to use or transplanting organs, as well as other forms of exploitation, shall be punishable by ten to twenty years of imprisonment. There are no special legal provisions regarding unaccompanied minors, be it Albanian nationals returning from migration or foreign nationals who are found unaccompanied in the Albanian territory. 2.4 Treatment of unaccompanied children as a specific category by certain national and international documents 30 Out of the entire body of provisions contained in the Convention on the Rights of the Child, the term unaccompanied 73 is only mentioned in Article 22(1) that provides: States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties. However, looking at the content of the norm, we find that protection is guaranteed for those children who apply for the status of refugee or are considered as such, without being specifically applicable to unaccompanied children who fall out of these two categories. Comment No. 6 of the Committee for the Rights of the Child of June defines unaccompanied minors as children (under 18 years), who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so. Along with the category of the unaccompanied minors, international documents refer as well to the notion of separated children/minors, defined as children (under 18 years) outside their country of origin who have been separated from both parents, or from their previous legal or customary primary care-giver, but not 73 The Albanian version makes use of the term alone. 74 Hereafter referred to as Comment No. 6

31 ANALYSIS OF LEGAL AND INSTIUTIONAL FRAMEWORK RELEVANT TO CHILD PROTECTION necessarily from other relatives, including children accompanied by other adult family members. 75 Comment No. 6 is among the most important standard-setting documents for the treatment of unaccompanied children. In , the Committee had noticed an increase in the number of unaccompanied children due to separation or lack of accompaniment for reasons related to: child or parents persecution, international fights and civil conflicts, trafficking of different forms and contexts, including the selling of the house by the parents in search of better economic opportunities. Concerns such as these have led the Committee to frequently raise issues related to unaccompanied and separated children 77. It emphasizes that Unaccompanied and separated girls are at particular risk of gender based violence, including domestic violence. In some situations, it says, such children have no access to proper and appropriate identification, registration, age assessment, documentation, family tracing, guardianship systems or legal advice. In many countries, unaccompanied and separated children are routinely denied entry to or detained by border or immigration officials, and in other cases they are admitted but are denied access to asylum procedures or their asylum claims are not handled in an age and gender sensitive manner. The Comment further provides the main child treatment standards that include: coverage of obligations towards unaccompanied or separated children throughout the State s territory without exclusion of zones, principle of non-discrimination, the child s best interest as primary consideration in seeking short or long-term solutions, the right to life, survival and development, the right to freely express their views freely, respect of the non-refoulement principle and confidentiality. The evaluation and implementation of the child s best interest has been elaborated in details in the UNHCR guidelines to determine the best interest of the child Chapter According to the Law 108/2013 On Foreigners and Law 121/2014, On Asylum in the Republic of Albania, unaccompanied children are defined as foreign nationals or stateless individuals under 18 years who enter the Republic of Albania unaccompanied by an adult individual, who is responsible of them, according to the law or customs and for as long as they are not under the effective care a similar individual. They also include those minors who, upon entry in the Republic of Albania, have been left unaccompanied. The laws in question address the issue of unaccompanied children from the perspective of the foreign or stateless children entering the Albanian territory, while determining the safeguards and protection they should enjoy at the moment Albanian authorities are notified about the case, but they do not include the situation of Albanian nationals who return unaccompanied from host countries. In 2011, the Council of Europe approved Recommendation 1969 (2011), Unaccompanied children in Europe: issues of arrival, stay and return, asking inter alia the member states to address with priority issues related to the 15 common principles and contribute accordingly to the elaboration of guidelines to assess the best interest of the child, legal guardianship of unaccompanied children, age assessment and application of child-friendly justice, as well as 75 See the definition provided by the General Comment No. 6 of the Committee for the Rights of the Child and Council of Europe Recommendation CM/Rec (2007)9. See The protection of separated or unaccompanied minors by national human rights structures, October 2009 Padua (Italy), Workshop Debriefing paper 76 Paragraph 2 of Comment 6 of the UN Committee for the Rights of the Child 77 Paragraph 4 of Comment 6 78 Available at 31

32 the establishment of effective and coherent protection systems for asylum-seeking children and children who are victims of trafficking. 79 Other legal instruments include also Albania s Agreement that address/regulate issues of border management and migration. The earliest agreement referred to during data collection for this assessment report is the Agreement between the Government of the Republic of Albania and the Government of the Hellenic Republic of Greece, On the cooperation of the Ministries of Public Order, Based on their Competencies, 1992, signed in 1992 and entered into force in This is an agreement extended along an undetermined time, according to which, parties are committed to cooperating in fighting irregular migration and readmitting people who have illegally crossed the border or stay illegally in the territories of both countries, based on evidence that prove illegal emigration or stay (Article 4). In 2005, Albania concluded an Agreement with the European Community (EC) on the Readmission of persons residing without authorization 81 that was automatically applicable with Greece, as well. The Readmission Agreement between Albania and the EC bears no reference to minors. According to assessment, this might leave room to varied and quite contradictory interpretations, for example, that unaccompanied children fall out of the scope of the agreement, since minors shall be subjected to procedures that are entirely different or, on the other hand, that no distinction should be made between minors and adults. Practice has shown that the return of unaccompanied minors is mainly carried out with reference to and in line with the obligations prescribed in the Readmission Agreement. 82 It is worth mentioning, though, that all the EU countries use the Readmission agreements as grounds to repatriate minors, although the latter fail to include any specific provisions for the protection of minors 83. Being that readmission agreements are only applicable after the full return procedure is followed, an unaccompanied minor should first be in a position to use all possible safeguards ensuring his protection that are provided in the EU Return Directive. Article 10 of the Directive in question Before deciding to issue a return decision in respect of an unaccompanied minor, assistance by appropriate bodies other than the authorities enforcing return shall be granted with due consideration being given to the best interests of the child. Further, before removing an unaccompanied minor from the territory of a Member State, the authorities of that Member State shall be satisfied that he or she will be returned to a member of his or her family, a nominated guardian or adequate reception facilities in the State of return. Readmission Agreements with the European Community prevail on the bilateral agreements entered between EU countries, like in the case of the agreement between Albania and Greece, where it is not enforced for lack of any implementation protocol in place Resolution 1810(2011) approved by the Assembly on 15 April 2011 (18th meeting) provides also that Member States shall act in line with the UN General Comment No. 6 concerning the rights of the children, the guidelines approved by the UN High Commissioner for Refugees (UNHCR), UNICEF, Save the Children, Separated Children in Europe Programme, UNHCR Guidelines on determining the child s best interest of 2008, UNHCR Guidelines on asylum requests by children of 2009 and the SCEP Statement of Good Practices (SCEP 2010). 80 IOM, Return and Readmission to Albania, The experience of Selected EU Member states, COUNCIL DECISION of 7 November 2005 concerning the conclusion of the Agreement between the European Community and the Republic of Albania on the readmission of persons residing without authorization. (2005/809/ EC); available at 82 IOM, Return and Readmission to Albania, The experience of Selected EU Member states, European Migration Network, Unaccompanied Minors -an EU comparative study, Actually, negotiations are on-going between the Albanian and Greek party over a draft protocol for the implementation of the Readmission Agreement with the European Community.

33 ANALYSIS OF LEGAL AND INSTIUTIONAL FRAMEWORK RELEVANT TO CHILD PROTECTION Another bilateral agreement concerning children is the one between Albania and Greece, ratified by Albania in 2006 and by Greece in that protects and assists children who are victims of trafficking, sets mutual tasks in the cases of return that include preparation of the minor s family, safe return and respect of the child s best interest. The agreement covers various aspects of the action against trafficking in children, prevention of trafficking, notification on the identification of trafficking victims, provision of an adequate assistance and its follow-up. The document provides the definition of the child as victim of trafficking, potential trafficking victim, unaccompanied minor. In terms of potential victim, the agreement determines the following: A child who is a potential victim of trafficking shall refer to the minor who is in a serious, concrete and present situation, as a result of which the minor is faced with the risk of turning into a trafficked child, whereas by unaccompanied minor the agreement shall understand the individual under 18 years of age who lives in the territory of one of the parties to the agreement, who has been separated by the parents and is not under the care of an adult individual. According to the said agreement, the unaccompanied children must benefit from the protection provided in its articles in the case where the minor is qualified as a victim. It stipulates that the return of the child (victim of trafficking) shall happen through a voluntary, legitimate and assisted procedure that is prepared adequately, safe and compatible with the best interest of the child. Collected data suggest that there is a small number of cases handled in the framework of this agreement, with the local ARSIS organization having played the role of the facilitator in its implementation. 2 Chapter 2.5 Local mechanisms related to the treatment of unaccompanied minors It is generally possible to conclude that although the Albanian laws do not contain explicit stipulations on unaccompanied minors, it contains several provisions applicable to them. Under the latter, some of the emigration practices of unaccompanied minors are punishable (like the accompaniment to Italy and subsequent abandonment, forced emigration to Greece or Italy for labour purposes, etc.). Practice, however, shows that except for the children identified as victims of trafficking, the rest of the cases concerning minors go unnoticed. This is quite a situation of alarm since it might further trigger emigration among minors through parents encouragement for as long as there is no applicable sanction. Albania has an established National Mechanism for the Identification and Referral of the Victims of Trafficking that becomes operational through the Standard Operating Procedures for the Identification and Referral of the Victims of Trafficking and Potential Victims of Trafficking (SOP) (Albania, Council of Ministers, 582/2011). According to the SOPs, in the course of their activity to identify victims of trafficking, the responsible authorities (at the border or abroad) might be reported cases of unaccompanied minors who might be victims of trafficking or could potentially become VoT, or, on the other hand, be simply unaccompanied. When this is the case, the National Responsible Authority, a special designated structure with decision-making powers in terms of minors referral, is informed and takes an ad hoc decision on the way how it should be proceeded with the case (since there are no specified procedures 85 Law No.9554 of , On the Ratification of the Agreement between the Council of Ministers of the Republic of Albania and the Republic of Greece, On the Protection and Assistance for Children Victims of Trafficking. 33

34 to follow in the case of minors 86 ). Practically speaking, upon return to Albania and initial contacts with the border police, minors, when forced to return, may even be left alone in the territory, without any follow-up. In order to regulate the reception and referral procedure for minors upon return, a joint directive of the Ministry of Internal Affairs/General State Police Directorate and the Ministry of Social Welfare and Youth/ State Social Service was issued in 2014, On taking measures for the reception and social treatment of unaccompanied minors returning/readmitted from other countries. Its purpose was to provide regulation for the entire process of reception of unaccompanied minors, from the border-crossing points and their placement under the protection of the family or any other authorized party, in line with legal provisions. During the interviews conducted for the purpose of this assessment, it resulted that the order was considered as a systemic take on the phenomenon of unaccompanied minor by the side of the state authorities. As of the middle of October, six assessments of the family conditions had been carried out, in line with the directive. The directive has been issued in line with the includes the Agreement between Albania and European Community, On readmission of persons residing without authorization, and its legal grounds include Law No of , On the State Police, Law No.9355 of , On Economic Assistance and Social Services, the Convention on the Rights of the Child, Internal Regulation of the State Police, approved by Order No of the Minister of Interior of The Directive has no legal reference, however, to the Law on the Protection of the Rights of the Child, and does not include the main structures of the child protection mechanism, local child protection units. Further, the directive fails to foresee the cases of returning minors without prior notice from EU member states or those cases where minors are returned within specific voluntary and assisted return programmes pursued by international organizations or others. The Order implicitly acknowledges that two options applicable in the cases where the family refuses to take back the minor or has no adequate living conditions or assistance offered by non-governmental or placement in institutions. In those cases where parents of the minor accept their child back in the family, but lack adequate conditions to ensure a normal life for the child, the social worker of the Regional Office for Social Services informs the State Social Service through the family assessment form, prior to the assisted return of the minor from emigration and cooperates with non-governmental organizations to help the family improve its living conditions. Where this is impossible, the child is placed in a social care institution. The order, however, fails to determine the relevant institutions. Albania does not yet have a reception centre for unaccompanied minors who cannot go back to their families of origin or foreigners who enter or transit through Albania. Another concern in relation to the Order raised during the interviews for purposes of this assessment is failure to refer to the willingness of the child to return Ministry of Interior, standart operat2011 Standard Operating Procedures for Identification and Referral of Victims of Trafficking and Potential Victims of Trafficking

35 Findings from field assessment 3.1 Situation and drive for migration of Roma families in Greece 3 Chapter The main drive for the migration of the individuals from the Roma community, according to the reports of the Roma people contacted for the purposes of this study, is employment. Such information is confirmed as well in the meetings held in the border crossing points, conforming the findings of relevant literature. I just want to be able to work and to eat; what can I do only with the economic assistance, having five members in the family and just receiving forty-five Lek? (group meeting in Gjirokastra) There are about 120 households in the neighbourhood; now most of them are missing because they have left. They can do nothing here, there is no water, no work and no house? (group meeting in Gjirokastra) In the case of the Roma households and Roma children? There are different cases; they can leave because of poverty, of the living conditions, of maltreatment; they can even leave because they are used to leaving. (Interview no. 15 of the operational level/at the border crossing point) According to a UNDP study, main kinds of work of international migrants from the Roma community are: collection of ironware, agriculture, casual work, construction, begging and used clothes selling, but none of these activities can ensure enough revenues for the migrant workers for them to be able to get outof poverty Prevention of separation and lack of accompaniment of children As per Comment No. 6, state responsibilities are not simply limited in providing protection and aid to children who are either not accompanied, nor separated, but do also include measures to prevent separation. According to the Committee, the states need to adopt measures for the early identification of unaccompanied and separated children at the border crossing points, to find their family members, and, if in the best interest of the child, to reunite the separated and unaccompanied children with their families as soon as possible. No one from the interviewees from the Roma community asked in the context of the present study was informed on the travel or stay of the unaccompanied minors. According to the community representatives we have spoken to, migration of children often happens together with their households. The children travel and stay with their parents, or with older siblings, with regular documents, not surpassing the deadlines of residing there and not having problems. 87 UNDP, Study on needs assessment of the Roma and Egyptian Communities in Albania,

36 36 According to the reports and documents provided from the interviewees, travel and residence while accompanied by the parents does not constitute protection of children from exploitation. Hence, according to a study back in , about one third of the children subject to in-depth interviews reported of begging either forcefully of obliged mainly from their parents. The same study informs that the parents have found that it was no longer efficient to send their children to Greece with third party traffickers as there was a higher risk they may be caught and because of the fact that parents had come to realise that they could receive a considerable part of the benefit from begging if they were to realise it themselves. During the evaluation it was highlighted that the major border of prevention of the Albanian migration of unaccompanied minors relays on the border police. During the evaluation there was no information provided on a special campaign for the prevention, or activities of the child protection structures for the identification of children planning either to migrate on their own, or risking to be separated from the accompanying persons in the transit or destination place. The means used and informed as used by the staff of the border police crossing points for preventing the phenomenon of unaccompanied children, as reported at the meetings organised for collecting the relevant information, include asking for providing safeguards of staying in Greece, notary declaration of both parents, control at the TIMS system. The means used, as reported by the Greek authorities, include entry bans. The border staff inform that they show a special care to ensure that in the border passing cases, the persons travelling abroad have the necessary financial means and accurate information on the conditions of residing at the Schengen area. Anyhow, according to the information received, these requirements are done on a selective basis and are perceived as discriminatory. In one occasion, an adult from the Roma community reported as follows: The Albanian asks for safeguards, they ask us to show the money we need to have to live in Greece; they have learned from the Greeks. They don t ask money questions from the whites, but they ask us to have the money; if we have no money, they would not allow us to pass. I can understand the Greek asking for money, but the Albanian? What reason does he have for that? You probably do not trust me, but it is several times that I want to leave the country, and I am not allowed to there is this person there I will wait until he is no longer there, and I will go again (group meeting in Gjirokastra); According to the information received in two border-crossing crossing points, strict measures have been taken to prevent the leaving of children who are not accompanied by their parents. We refuse to let go of the children accompanied only by one of their parents: when parents are separated, we have asked for a Court decision on appointing the foster care. (Interview No. 18 of the operational/border level); One of the effective measures is improvement of the notary declaration by the parents, in the event the child travel abroad without being accompanied. In the instructions of the General State Police Directorate, addressed to the Regional Border and Migration Regional Directorates, (February 2014), these directorates are told that all the notary acts carried by the parents authorising the child to travel abroad with an adult, shall be considered valid in the event they contain the following paragraph: in the event of failure to observe the clauses of such act, particularly regarding the declared destination of our son/daughter, but also regarding the conditions imposed in the context of the visa liberalization regime, as civilly responsible people, we commit to undertake and ensure 88 Anti-Slavery International, Emily Delap, Begging for change, Research Findings and recommendations on forced child begging in Albania/ Greece, India and Senegal, Available at documents/cm_docs/2009/b/beggingforchange09.pdf

37 FINDINGS FROM FIELD ASSESSMENT his return to his/her family, in the context of a legal family re-union in Albania, despite of the place or conditions our child is found into, which commitment excludes us from criminal responsibility and abandonment of the child according to the Albanian legislation in force. Some informants report their concern that while such notary acts have been used so far to ensure the responsibilities of the authorised person to take care of the child, that is protection and care for the child who is travelling in the main scope, it is visible that the other concern or aims, namely the prevention of asylum-seeking from the minor and finding of financial resources to return the child, prevails over the best interest and the child protection. Such declaration, in particular the phrase despite of the place and the conditions our child is found into, may be interpreted as a passive stance of the parent and of the Albanian state vis-à-vis what may happen to an unaccompanied child. The unaccompanied child may as well be subject to the violation of rights from the persons accompanying him or her, by the transit or destination states, or any other person in the travel and the parent/s, despite of all, undertakes to return him/her back. However, according to the information collected in the border crossing points, the introduction of this clause in the notary act has been very effective, as it has lead to the reduction by 70 % of such cases, including refusals of exits. It has been worth it, because there have been cases when individuals have not been allowed to pass the border together with the child; they have left the child and have passed the crossing points without them. (Interview No. 18 of the operational/border level). One of the border crossing points applied the practice of noting the exit of the accompanied child both under the same of the accompanying adult and of the child, so that the accompanying adult faces criminal responsibility in the event he or she returns without the minor. One of the concerns raised even during the interviews is the authenticity of the notary declarations. This concern is in the same approach with what is highlighted in the FRONTEX 89 report, which reads that in the first quarter of 2014, Albanians have been reported to have used over 900 fake documents (including authentic passports with fake visas or seals) less than in the first quarter of 2013, but this figure is still the highest at the EU level. Most frequent abuses have been identified with the Greek border. According to the informants, the border-crossing points have been asked to draft and report tabular information for all the cases of unaccompanied children, by marking down the name of the accompanying person, the name of the notary having drafted the notary declaration, so as to identify and to penalise the notaries as well. Prohibition of entries for any decision of return is one of the ways to reduce illegal migration, affecting also the migration plans for other EU countries. According to the EMN synthetic report of 2014, different for all the countries examined under the report, Greece decides on a ban of entry for all the cases of decisions of return, with no distinction between the voluntary or forced return and is one of those countries that out notifications/signalling in the Schengen Information System as a standard practice. 90 According to this report, in Greece, as in the Check Republic, Slovenia and Poland, decisions on entry bans are exclusively taken by the Police Authorities, including border guards: in 2013 Greece has decided on the biggest number of prohibition of entries (52619), followed by Germany (16100), Spain (13435) and Sweden (10392). While in many other countries minors are exempt from entry bans, Greece prohibits only those minors whose foster parents have a regular/lawful residence in Greece. The ones we talked to in the context of 3 Chapter 89 FRONTEX, FRAN Quarterly, January March European Migration Network Synthesis Report for the EMN Focused Study Good practices in the return and reintegration of irregular migrants: Member States entry bans policy and use of readmission agreements between Member States and third countries,

38 this study reported that they were keen on respecting deadlines and took care of not surpassing the deadlines, in order to not be halted, not to be returned and/or marked in the records of returns. We have not had any problems passing the border; we pass with a regular passport. They used to have regular documents and even got visas, but they have now given them up as money was needed to constantly update such documents. (group meeting in Gjirokastra) If you stay longer than prescribed in the rules, you are returned. A friend of mine, 22, together with her child, were kept in pre-detention for 24 days. The first time she stood three days beyond the deadline. The second time she was caught and was imprisoned. Given that the child was constantly crying, they did not send her in the kindergarten, but left her with her mother, in predetention. Some say she has done some other staff as well, whichever the case, she was sent to prison, together with the child (Interview No. of the client level, Korça). According to the interviewed family members, data recording in IT or computer systems through the TIMS 91 system has significantly reduced unjust penalization of the Roma people: Before it happened that somebody was captured and he reported my name, and then I was prohibited to going to Greece. Such thing does not happen now. (group meeting in Gjirokastra) During the evaluation, it was not possible to identify on whether the children resulting to be unaccompanied or separated in Greece have passed through the border crossing points. It was recommended that the further activities and observations, in the verge of the evaluation, include collection of information and get concentrated more in the roads and manner of passing of children who result to be unaccompanied in this place of destination. 3.3 Experiences of minors in Greece According to the US Department of State report for Greece in 2014, according to the police and NGO-s, there is an increase of the Roma children from Albania, Bulgaria and Romania who are subject to forced labour in Greece from their family members to sell goods in the street, to beg or commit minor thefts, according to the US Department of State report on Greece in 2014, according to the police and some NGOs. 92 The same report for Albania shows that there is a growing concern for the Albanian children, often of the Roma ethnicity, who undergo forced begging of other forms of forced labour in Greece, Kosovo and within Albania. 93 The same situation is confirmed even by the interviews and other meetings organised in the context of the present study: We do not go to beg in Greece. We go to collect olives and to fetch some used clothes for selling her. Others from Korca and Elbasani, they go to beg and they send children for begging t. (group meeting in Gjirokastra). I have a woman relative who lives in Greece. She dresses in a traditional manner and has two children. Nobody hires her, so she is obligated to beg. She cannot afford paying the rent. They beg and torture themselves out for it, but they manage getting nothing. (Interview No. 8 of the operational level in Korça) Total Information Management System. 92 US Department of State, Office to monitor and combat trafficking in persons 2014 Trafficking in Persons Report available at 93 Taken from

39 FINDINGS FROM FIELD ASSESSMENT According to George Moschos, Deputy Ombudsman for Greece (2013), the unaccompanied children in Greece are mainly children of the age of years, arriving in Greece illegally, without their parents, from Asian and African countries affected by the war or in other conflicts (Afghanistan, Pakistan, Bangladesh, Syria, Iraq, Egypt, Somalia, Central Africa and other countries), who mostly hope to end in Northern or Western Europe, and just a small share apply for asylum in Greece. Children of every age are trafficked in neighbouring countries (Albania, Bulgaria, Romania, etc.) so as to work in the street (to beg, play music, sell flowers, clean car windows and other similar work) and teenage girls, mainly from Africa, trafficked in Greece for sexual exploitation and mainly accompanied or supervised from people exploiting them Chapter A study conducted by Terre des Hommes in 2014 for the mobile children, included 20 households, mostly of which (15) from the Roma community. The study highlighted that most of the households were circulating migrants; they had moved in and out of Greece for several times, and had been staying there from some months to some years. In Greece households had either asked for a job, or had begged in the street and many of the children had begged together with their families (15 from 20), while three children had done other types of work, such as collection of cans, selling of flowers, while only one child had been enrolled in school. 95 The stories shared by the respondents, several detached elements showing of the worst forms of works by the children emerge, instead of the histories on non-registration of children or treatment of households by the authorities in Greece. While speaking of the difficulties in recording the children, one of the interviewees said: The Greeks have prejudices on us: for us it is two types of prejudice: the first being that we are Albanians and the other that we are Roma. I did not stay for long and I did not go around a lot in order to understand who was a Roma. There was an Albanian we met who told everybody he was a Bulgarian. It took us some time to understand that he was like us. (Interview No. 3 of the client level in Korça). Multiple discrimination cases popped to the fore while were collecting the information. We are always blamed for anything going wrong. I was captured and kept there for a week in 2003; they got me confused with somebody else; they kicked me off and did not believe me that I had done nothing. I asked for a lawyer, I got my right they asked for pardon and I did not file the case in higher instances. (Interview No. 4 of the client level in Korça) My two daughters are married; they live together with their children in Greece. They are jobless. One of my daughters has three young daughters. They beg and sell. But the police are not leaving them alone. They one day took the girls from the table and kept them from 5 a.m. and released them at 4 p.m. We had to borrow 500 Euro to get them off. They would not release the girls because they are different from one-another. The middle one is blond, whereas the youngest one is of darker complexion. (Interview No. 2 of the client level in Korça) During the evaluation no wide information could be collected through the interviews or group meetings on the aid or access provided by the Albanian nationals for the minors to seek asylum or complementary protection in Greece. According to an IIR study in , when a minor who is 94 George Moschos,Deputy Ombudsman, Head of Department of Children s Rights, Independent Authority The Greek Ombudsman, Treatment of unaccompanied children in Greece: Trends and challenges, ENOC 17th Annual Conference and General Assembly, Brussels, 25, 26, 27 September Terre des Hommes, (2014) Half way home, Monitoring the Reintegration of Children Returnedfrom EU to South-East European countries. 96 The Institute of International Relations (IIR) of Panteion University of Social and Political Sciences, 2014, EMN Study 2014 Policies, practices and data on unaccompanied minors. 39

40 a national of third countries is captured/identified in the border or within the territory of the Hellenic state, the competent authorities (the regional police or prosecution office) adopt measures to find out his/her identity and nationality and whether he/she is accompanied or not. Afterwards efforts are made to identify the family the soonest possible and to adopt measures to ensure his/her legal representation and, when necessary, his/her representation in criminal proceedings. Such procedure is follows for all the cases, in compliance with Article 19 of the Presidential Decree 220/2007, but despite the fact that he/she asks for international protection or not. In the event that, after investigations, the household or foster parents are not to be found, the Division on Foreigners notifies Interpol to ask in their countries. Following such procedure and if the request for international protection is not accepted (or has not been filed), a decision is taken for expulsion or return. Based on a special regime of care and protection, the minor is kept in special venues without the presence of other minors. Again, according to this study, when unaccompanied children are victims of trafficking or of human smuggling, based on their request, they may be provided with a residence permit for 12 months, subject to renewal. According to the study, the effective protection of unaccompanied minors remains a challenge and the Government and stakeholders have given priority to: The need to increase the reception centres, opened for the unaccompanied minors, particularly for the girls and minors under the age of ; Strengthening of the foster system (an ad-hoc working group has been established for the review of the legal framework dealing with the foster care of the unaccompanied minors); Detailed registration of the unaccompanied minors arriving in Greece, as the first step to meet their needs; Use of other alternative methods vis-à-vis confinement of unaccompanied children in a closed centre; Assurance of full access to the education system, facilitating vocational training, etc.; Facilitation of reference to competent authorities, without bureaucratic delays of minors, whose request for asylum are rejected, in order to investigate that a permit may be given to them on humanitarian grounds, or on legal grounds. The interviews realised for the purpose of this present study did not manage to clarify what type of venues the minors were kept into prior to deportation. 98 Anyway, one of the interviewees in the border crossing point, when asked on the conditions of detention and duration of detention, reported that: They do not keep them in prison; they are special venues for children and women; they may as well close the case within the day. The three boys we had yesterday, one 16, one 17 and the other 14, were of the surrounding area; they were caught in the afternoon and brought here in the evening. (Interview No. 18 of the operational level/border) According to the Greek Ombudsman (2013), the children were mainly treated as violators of law having rights related to their age. They are settled in closed police venues and have stayed there for long periods in unhealthy and unacceptable conditions, sometimes even with adults. Street children are put in unsuitable institutions and have left such institutions and no foster career has Most of the NGOs used to have some support from the state, but, sue to the crises, funding has reduced thus rendering long-term planning and re-integration almost impossible. According to EKKA, 1149 children have been placed in accommodation centres in 2013, but there are no centres for the children below the age of 12; children are out at unsuitable conditions such as, for instance, in hospitals or in venues far from the important network. 98 No returned minor was met during visits in the border crossing points; in addition the border crossing point staff could not plan any meeting as it could not be known when an accompanied.

41 FINDINGS FROM FIELD ASSESSMENT in the overwhelming cases been assigned to them. Some unaccompanied children, in particular from the neighbouring countries, over the age of 12, have been deported. 99 Doctors Without Borders (2014) inform of spread practices of keeping children in reception centres: 100 [ A particularly big group is the one of the unaccompanied children, who are kept together with adults for long periods of time, sometimes even registered as minors. In the MSF responses of 2013 and 2014, the teams have identified over 100 young people who could be minors wrongfully registered as adults. Some had documentation from the country of origin showing of their age, although this was not taken into account by the police. Some said they had initially not disclosed their age, thinking that they would be released earlier if they were to tell that they were grown up; others did not know that they were registered as adults Chapter According to the Greek Council for Refugees (2015), in August 2014, the Greek Ombudsman, after receiving some complaints for detention of unaccompanied minors in the detention centres for adults, paid a monitoring visit in the detention centre before leaving for Amygdaleza where the unaccompanied minors were kept. According to the report, during the visit, it was inter alia found that the detainees that were clearly unaccompanied minors were registered by the Greek Police (the responsible authority for the arrest and prohibition) as adults; there was no standard procedure for assessing the age; it was not clear if the reception services were provided to all the arrested people entering the country in an irregular manner; conditions of detention did not correspond with the appropriate standards Return and reception Figures of returns According to the scholar E. Gemi there are still no data on the level of returns of Albanian migrants from Greece upon their migration project in other EU countries; many things are happening and there are many migration trends emerging. Economic crisis drives Albanians towards Greece even in case they get back to Albania they might as well decide to leave for some other country. It might not only be the time of returns, but the time of a new migration cycle towards the countries with a developed economy in the EE, such as the UK or Germany, or even further in the united States or Canada. 102 The assessment respondents did also refer to the incapacity to find a job and renew the residence permits: 99 The Greek Ombudsman, Treatment of unaccompanied children in Greece: Trends and challenges, ENOC 17th Annual Conference and General Assembly, Brussels, 25, 26, 27 September Invisible Suffering, Prolonged and systematic detention of migrants and asylum seekers in substandard conditions in Greece, Medecines sans Frontiers MSF Operations in Immigration Detention Facilities In Greece Greek Council for Refugees,Report of the Greek Council for Refugees to the UN Human Rights Committee on Detention Issues (ICCPR art.7, 9, and 10) in view of its 113th session. 102 Eda Gemi, Albanian Irregular Migration to Greece, A new typology of crisis. 2013,Available at academia.edu/ /albanian_irregular_migration_to_greece_a_new_typology_of_crisis 41

42 We had documents, but then we could not renew them because we had to pay every month and we could not; some had to pay Euro , therefore they could not manage to pay for them. (group meeting in Gjirokastra) We are scared for their return: they have no place to go if returned. None of them has a house. The children are now getting older and getting married there; they cannot leave the children. (Interview No. 2 of the client/consumer level in Korça) According to scholar A. Triandafyllidou (2014), assuming their return due to failure to renew their permits because of losing their jobs, there may be approximately 86,000 returnees from Greece during the period of However, at least according to the migration experts in Greece 103, there are no data kept for returns/expulsions, and no data is available regarding the ones staying with no residence permit, falling under the category of illegal migrants, or of the ones returning in their countries of origin. 104 According to FRONTEX, in 2012, the UK and Greece were the EU member states recording the highest number of the returns. 105 According to the Greek Ombudsman, some unaccompanied children above the age of 12, particularly from the neighbouring countries, have been deported. 106 The information received during the interviews organised for the purposes of the present study, it shows that in the border crossing point of Kapshtica, in August 2014, there have been 496 deportees, from whom 19 were children, while in Kakavija, in July 2014, from about 80 deportees in a week, one was below the age of 18. According to the border crossing points, a part of returns is related to the case of inhabitants in the surrounding border point area, who pass the border just to visit the other side of the border, or to work on the other side of the border. According to statistics from the Greek authorities, enabled during a bilateral meeting of the Ministers of Interior of Greece and Albania, facilitated by IOM, 64 unaccompanied minors were returned to Albania during The interviewed households in Gjirokastra report that there are no cases of returns of unaccompanied minors from Greece. They restate this with the fact that they have respected the stay deadlines and that noone of their children has been sentenced in Greece before. The same is also informed from the border crossing points. There are no more Roma returning. The Roma in Gjirokastra are all with documents, like everybody else; they observe the deadlines. (Interview No. 15 of the operational level, in the border crossing point) Measures and security before return Referring to paragraph 84 of Comment No. 6, return to the country of origin is not an option if it may lead to a reasonable risk ; that is if the return would lead to the violation of the fundamental 103 Migration in Greece Recent Developments in 2014 Prof. Anna Triandafyllidou Global Governance Programme European University Institute Anna.triandafyllidou@eui.eu anna@eliamep.gr 104 Anna T, citing these sources: Hellenic Statistical Authority (EL.STAT.), National Census data 2011; Ministry of Interior, Valid Stay Permits on 31 December 2011 and on 30 June Frontex annual risk analysis 201, available at: Annual_Risk_Analysis_2014.pdf 106 The Greek Ombudsman, Treatment of unaccompanied children in Greece: Trends and challenges, ENOC 17th Annual Conference and General Assembly, Brussels, 25, 26, 27 September Hellenic Ministry of Interior, Administration and Reconstruction, March 2015, Athens, Trilateral meeting between the Hellenic Ministry of Interior, Administration and Reconstruction, IOM and the Albanian Ministry of Internal Affairs.

43 FINDINGS FROM FIELD ASSESSMENT rights of children the principle of non-return would be applicable. Return in the country of origin should in principle be organised if the return is in the best interest of the child and in case such a decision, accounts for, inter alia: the safety and other conditions, including the socio-economic conditions the child will be faced with, including a study on the family, when appropriate, from social network organizations, availability of child care services for the child, the points of view of the child in implementation of his/her right and the points of view of the ones caring about him/her, level of integration for the child in the country of destination and duration of absence in the country of origin; the child right to preserve his/her identity, including the nationality, name and family ties, possibility of continuity of education of the child according to ethnic, cultural and language dependency. In the absence of availability from foster carers or the wide family, the return to the country of origin, should in principle not happen without the preliminary and safe preparation of responsibilities of care and foster care upon the return to the country of origin. According to paragraph 85 of the Comment No. 6, on an exceptional basis, return to the country of origin may be organised after a careful weighting of the best interest of the child and other considerations, if they prevail over the best interest of the child. Such may be the case when the child imposes a serious risk for the state security, or security of the society. Arguments not grounded in the rights, such as the ones related to control of migration, cannot prevail over the best interests of the child. According to paragraph 86 of Comment No. 6, in all the cases, return should happen while taking into consideration the age and gender of the child, and in line with paragraph 87 the states notify of the obligations deriving from Article 10 of the CCR to observe the right of the child and of the parents to leave any country, including their own country, and to re-enter in their own country. 3 Chapter Referring to the Readmission Agreement with the EU, returns/readmissions have to be made based on a preliminary request. Based on Article 10(1), the readmission application should be submitted to the competent authorities of the requested state within a maximum deadline of one year from the time the competent authority of the requesting state becomes aware of the fact that a national of a third country, or a person without nationality ceases to meet the conditions in force on entry, stay or residence, or is no longer able to meet such conditions. When there are legal or objective impediments for the application to be filed within a certain deadline, the deadline, upon the application of the requesting state, shall be postponed, but only until some obstacles do no longer exist. According to item (2) a re-admission application should get a reply without undue delays, and at any case within a period of time of 14 days; reasons shall be granted for rejection of a re-admission application. If no reply is forwarded within this deadline, the application shall be considered accepted. According to Article 5 Non-refoulement, when applying such document the member states shall take into consideration the best interest of the child, his/her family life and the health status, as laid down in Directive 2008/115/EC of the EU Parliament and Council on Common standards and procedures in the member states for returning illegally staying third-country nationals, when such Directive becomes applicable. According to the information received in 7 July 2015, in some cases, the French, Norway and UK 108 authorities, inter alia, have cooperated with the Albanian Border Police and the State Social Service for tracing the family origin in Albania to prepare e socio-economic profile of the family and to determine whether it is in the best interest of the child to return him/her or not. Other countries in the EU, like Belgium, the Netherland, are examining the possibility of assisted voluntary and re-integration potentials of the UAMs. 108 Information submitted by the State Social Service in the round table on Planning the actions for the treatment of unaccompanied and separated minors, organized at the Ministry of Interior, in the context of the project this assessment was realised into. 43

44 According to the information collected by IIR 109, in compliance with the Greek law, Article 25 of Law 3907/2011 before removing an unaccompanied child from the country, the competent authorities should verify whether he/she shall be returned to a member of his/her family, to a certain foster carer or to a suitable host centre in the country of region. According to the informants from the border police, returns are in groups defined where the individuals are caught to enter or stay illegally, which allows for the assumption that the irregularity of stay is the only important element in the return decisions. Only the ones caught in Thessaloniki are returned to Korca: the island and Athens come here,the ones caught in the villages and in the surrounding areas are returned in QafëBotë. (Interview No. 15 of the operational level) The assessment team was informed of the return of persons with disabilities: There was a case when a disabled person was returned; he did not even know where he was from; he only spoke Albanian and the police staff did nor know how to react. The police guy is a good guy; he did not know how to communicate with him and he called me to assist. (Interview No. of the operational level); According to the authorities in the Albanian border, contacted during the evaluation, the information for the returnees/deportees is limited in an accompanying list of names, coming together with the group accompanied by the Greek police. They bring the list when the Greek police van arrives. They have made their verifications, have taken their fingerprints to seen on whether they have been involved in any criminal activity. They bring them here and we are obligated to get them as they are Albanian nationals. (Interview No. 15 of the operational level, border) The ones interviewed from the police in the border points reported that there has been no case of deporting of unaccompanied children not registered upon return to Albania. In the knowledge and work of the Amarodrom, up to Spring 2015 there are about 20 cases in the area of Gjirokastra, Korca, Bilisht, and Delvina in which children were born in Greece and were returned to Albania without termination of the child registration process, therefore they had birth certificates, therefore the parent-child relationship has been attested. ARSIS informs that one of the major causes of failure to register is deportation of parents and children without finalising the registration of the child. 110 One of the persons we talked to in the context of this evaluation, suggested that one of the issues more light has to be cast upon by us is research from the viewpoint of the rights and principles of the protection of the child, of the steps and procedures followed by the authorities of both parties in the treatment of such cases Measures and safeguards for receiving children According to paragraph 1 of Article 109 Accompaniment in the police of the Police Law, the police staff the police staff takes care of accompanying the persons in the police venues, or in the ordering institution in the conditions and cases including: for the supervision of the minor for educational or The Institute of International Relations (IIR) of Panteion University of Social and Political Sciences, EMN Focused Study 2014 Policies, practices and data on unaccompanied minors in ARSIS Communication To: the project Assessment of situation of Roma children vulnerabilities to transborder child labour exploitation and trafficking, Thessaloniki, One of the respondents painfully referred to them as internal unaccompanied persons ;

45 FINDINGS FROM FIELD ASSESSMENT accompaniment reasons to the competent authority 112 ; for illegal entry in the state border, and in the cases of expulsion or extradition 113. Paragraph 2 of the Article stipulates that the accompanied person is not treated under same conditions as the detained or arrested person and, in any case, accompaniment should last until explanation of the case, but no more than 10 hours. Paragraph 8 of this Article refers to the technical rules of accompaniment, identification, keeping and treatment of the accompanied persons to the police venues from the State Police Director. 3 Chapter In one of the border crossing points, the interviewees were not sure on whether to use or not the word accompany for the returned children; we even debated upon whether putting the returned child in a closed room with bars was accompaniment, or detention. However, they declared that they could keep the children returned from the Greek party up to 10 hours. In a border crossing point, it was not asked whether the adult kept in the room was detained, or accompanied ; anyway no difference was shown between this environment and the environment where the unaccompanied child was kept. The place where children were kept had less than a prison cell. Lack of suitable venues for the children was informed as a concern in the two border crossing points we visited. We do not have venues to keep children. There was a case the child opened the window bas and fled away; the police was fired and I have no idea what happened next. There should be suitable venues for children, so as they are not kept with minors. We have a women s room; a suitable ground has to be created for the children as well (Interview No. 15 of the operational level); Photo of internal view of the room where children are kept in one of the Border Crossing Points, Photo by V. Lenja, July 2014 The lack of a special venue, of experts for interviewing children or of funds to receive the children has been voiced as a concern by the interviewees in the other project regions. In Korca, the SHSSH staff informed that years ago, in the context of the TdH project, psychologists were used to interview the deported children, and food and transportation was provided to children, while in the context of the ARSIS project, a psychologist was provided for interviewing the deported children to identify the victims of trafficking. According to the border crossing point staff, the returnees have complaints regarding their treatment from the authorities during the return procedure 114 : We have a problem with the returnees; even today we had this case when the Greeks get the money and the mobile phones from them. The Greek police take Euro 500 or 1000 and never have them back to the returnees. I told the chief about this, but he kept no notice of it at all. They leave like that, with their head behind. (Interview No. 15 of the operational level) They are tired, lost, hungry. We feed them from our meal. (Interview of the operational level No. 15) 112 Letter (e). 113 Letter (f). 114 It was not specified whether the ones complaining were minors or adults. 45

46 Article 115 Applications/complains of the accompanied, detained and arrested persons of the Police Law, 115 stipulates that 1. Any person who is accompanied, detained or arrested in the police venues, as well as any other national for whom the police staff carry out the actions in accordance with the provisions of this Law, or are affected during completion of such acts, is entitled to submit an oral or written application/request the heads of the police or of other state institutions. 2. The person accompanied by the police according to the specificities of the Law, may address the court at any time. 3. After having recorded the application/request, the police staff records it in the relevant register and is obligated to immediately send it in in the institution the application is addressed to. 4. For applications/ requests addressed to the police heads, where the accompanied, detained or arrested person is found, the reply is provided immediately, but in an case no latter than five working days from their submission. According to these interviewees, there is a complaint register where persons may complain about the behaviour of the police. No records of complaints for the Greek police was seen to have been recorded in this register, and no further information was received as to what happened to these complaints latter. The joint order of the Ministry of Interior/General State Police Directorate On adoption of measures for receiving and social treatment of returning/readmitted minors from other countries obligates the Border Crossing Points and the SHSSH to cooperate for contacting the parents and assessing the socio-economic situation before return. According to such Order: 1. The Border and Migration Department, in the event of application for the readmission of minors, in the context of the Agreement between Albania and the European Community, or of application of a bilateral readmission agreement, should inform through an official note the Regional Border and Migration Directorate under which jurisdiction the place of domicile of the minor falls into. 2. The head/ specialist of the Regional Border and Migration Directorate, together with the social staff of the Social Services Regional Office should contact with the parent, legal foster carer of the minor, by informing him/her of the application for readmission to Albania by the foreign authorities the minor is temporarily residing into. In the conditions of forced return of minors from Greece with no application for readmission, with no preliminary notification or information to the child, this order is virtually non-applicable. According to the respondents, it is impossible to concentrate to a minor and to access the situation and take a decision in the best interest of the child when the number of the returnees is high, potentially including even wanted persons, when accompaniment deadlines end very speedily, when the border staff are worried about the emotional and physical situation of the minor and for making sure that the minor does not flee away. What virtually happens, according to the border crossing point staff, is to first identify the family and to call the parent/s to immediately come and take his/her child. We talk to the chiefs and, through police operation rooms, they talk to the police of the country the family is found into. The family members come and take them. We keep them here until their parents come to take them. We have no transportation means to drive them home. There have been cases when they have been staying for more than 24 hours. We have nothing to feed them with. We used to have before, but we have nothing now. One of them fled away; he just put the bars apart and left (Interview No. 15 of the operational level) In many cases we have taken money out of our pockets. (Interview No. 15 of the operational level) Law No. 108/2014 On State Police.

47 3.4.4 Identification of exploited, abused or trafficked people FINDINGS FROM FIELD ASSESSMENT The unaccompanied children and the Roma children are considered as one of the most vulnerable groups at risk of trafficking and exploitation. In the document of Standard Operation Procedures, for identifying the victims of trafficking, the accompanying element is one of the elements making the difference in the event of minors at the border crossing point that is it helps in identifying the children who are victims of trafficking amidst the returning children and in preventing the final objective, namely of trafficking these children, or cutting the trafficking chain for the ones leaving from Albania. Amongst the most important indicators using these elements of differentiation are: the minor is accompanied by an adult not know for trafficking of adults or minors, the minor is unaccompanied and there is no authorisation by the parent to travel, which is not simply explained by the negligence of the parents. Among secondary indicators using this element of differentiation are: the minor is accompanied by an adult, non-family member, who insists to stay with him/her all the time. The team was informed that it has now become a rule that the border staff examine with care all cases of forcefully or voluntarily returned minors, in order to identify the potential victims of trafficking, notify the anti-trafficking sector staff to interview according to SOPs. There was no case of identification of minor victims of trafficking, or at risk for trafficking in any of the Border Crossing Points we visited. According to the report on the implementation of the Strategy on the Fight Against Trafficking in Persons , for the period of January - December 2014, during 2014 the Border or Migration Police has identified 3 potential victims of trafficking of years of age and in all the three cases the potential victims of trafficking were identified once entering the Republic of Albania, readmitted in the category of deported nationals. According to the interlocutors, visa liberalization regime has changed the migration situation, hence, has led to the need for changing the indicators of identification of child victims. 3 Chapter 3.5 Reintegration One of the major challenges while collecting the information for the purposes of this present study was the identification of unaccompanied minors, returned in the areas targeted by the project, and collection of information from their experience upon return, including reintegration. During the meetings and interviews, it was concluded that this challenge is created due to the thitherto lack of focus of responsible institutions for the unaccompanied children, lack of a database for the unaccompanied children and their profile. For these reasons, collection of information was combined, as frequently as possible with meetings of local coordinators to raise awareness for the migration of unaccompanied children issue, to establish and strengthen communication of local coordinators with the institutions responsible for the referral of unaccompanied children. 47

48 Meeting in Saranda, July 2014, Photo by V. Lenja According to Terre des Homme, reintegration is the process happening after the return of the children in his/her country of origin. 116 The factors having an impact over reintegration of the returned children and their level of integration are the length of time spent in the host country, language knowledge of the language of the country of origin, the administrative situation of the country of origin, access to education and attendance of school, access to social and medical services, potential to be supported by the family and social network, access to labour economy, basic goods/commodities and suitable housing, situation of the household, availability of recreational activities, information on rights and services, time/calendar of aid. 117 The information collected from documents and interviews during the evaluation, shows that the children and Roma households are faced with challenges in all the spectrum of factors. According to one of the respondents, the situation merges together the two extremes of migration, the causes of migration and the incapacity to reintegrate Sheltering External view of a swelling where six households live in Saranda, Photo by V. Lenja 116 Supporting Child (Re) Integration: Terre des Hommes Policy Paper, 2009, Terre des Hommes, (2014) Half way home, Monitoring the Reintegration of Children Returnedfrom EU to South-East European countries. 118 Interview No. 9 of the operational level. 48

49 FINDINGS FROM FIELD ASSESSMENT 3 Chapter Internal view of the dwelling in Saranda (division of households by blankets), Photo by V. Lenja According to the report of the Commissioner for Anti-Discrimination (ADC) in Albania, 119 housing appears to be problematic for a considerable number of members from the Roma community, who live in difficult conditions, with insufficient space and in unsuitable venues. According to the Commissioner, the criteria established for housing are almost impossible to be met by persons belonging to the Roma and Egyptian communities. Such situation makes it impossible for them to benefit from the social protection system, while in some municipalities, although social houses exist for some years now, they are not allocated to the poor homeless Roma, but for the remainder of the population. During meetings with project coordinators and groups with Roma parents, we were informed that the lack of safe sheltering and conditions of their actual sheltering were two primary issues in the project target areas in Saranda, Delvina, Gjirokastra, Korça, Devoll. The situation was in particular sharp in Gjirokastra and in Saranda. Some of the descriptions of the respondents regarding the living conditions follow below: We are six households here, divided with curtains, trying to shape our rooms. The stuff you see here we have taken from the bins; we have washed it and keep it clean. This place is humid. Everything falling outside comes inside. The children are taken aback. (group meeting in Saranda) We were in Greece. They caught us and brought us back and we ended up here, in the furnituremaking ware-house. They took us here to make us a favour, we pay 25 thousand Lek, have no electricity, no water, we go and fetch water from bars. We have no contract; it costs money to have a contract. If we go and ask for a contract, we are shown the door. There are a lot of co-owners. Plus, they have problems with each-other as well. They are about to kill each-other for this property. We were taken to the streets once. We cannot register as dwellers here because we have no contract. Nobody accepts to have e contract with us. When we asked for the house document for the contract, they gave us that of their apartment, not of the house we are into. (group meeting in Saranda) For the parents interviewed in Saranda, identified by the local coordinator as vulnerable, the housing situation was related to the registration 120 and was complicated from other unresolved ownership problems most of the people have to be faced with: We were informed of the lack of drinking water both in Gjirokastra and in Saranda. In Gjirokastra, the lack of drinking water was reported as a cause to frequent quarrels. We have problems with the drinking water. There is only one tap and people are getting killed. (group meeting in Gjirokastra) 119 KMD, 2013 Annual Report 120 Civil registration office 49