POLICIES RELATING TO THE RECEPTION, INTEGRATION AND RETURN OF UNACCOMPANIED MINORS

Transcription

1 MINISTRY OF IMMIGRATION, INTEGRATION, NATIONAL IDENTITY AND CO- DEVELOPMENT POLICIES RELATING TO THE RECEPTION, INTEGRATION AND RETURN OF UNACCOMPANIED MINORS 1

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3 0- SUMMARY INTRODUCTION Definitions Measurement and complexity of the phenomenon REASONS MOTIVATING UNACCOMPANIED FOREIGN MINORS (UFM) TO LEAVE THEIR COUNTRY OF ORIGIN AND THE COUNTRIES OF ORIGIN A study by the French Department of Population and Migration (DPM) identified five... 6 categories of reasons for leaving a country of origin Countries of origin of UFMs PROCEDURES FOR ENTERING FRENCH TERRITORY Checking procedures on entry to French territory Stabilised flows that remain relatively high A high proportion of minors are sent back RECEPTION AND POLICIES GOVERNING THE PROTECTION AND INTEGRATION OF UFMs Legal protection measures Social measures to promote the integration of UFMs RETURN OF MINORS TO THEIR COUNTRY OF ORIGIN The procedure for assisting the return of unaccompanied foreign minors from countries outside the European Union Figures CONCLUSION: RECENT ADVANCES IN THE PROTECTION OF UNACCOMPANIED FOREIGN MINORS: TOWARDS THE HARMONISATION OF PRACTICES IN THE CHILD S GREATER INTEREST Implementation of the recommendations of the Défenseure des Enfants The creation of a working group by the Ministry of Immigration, Integration, National Identity and Codevelopment (MIINDS) APPENDIX Main legislative and regulatory texts concerning unaccompanied foreign minors

4 0- SUMMARY 1 The presence, considerable in quantitative terms, of unaccompanied foreign minors on French territory is a recent phenomenon, dating back to the end of the 1990s. Their numbers are estimated at between 4,000 and 6,000 (in 2007). The annual flow is estimated at around 500. The reasons motivating these minors departure from their home countries have been grouped into five categories, as listed in section Procedures governing the admission of unaccompanied foreign minors to French territory are based primarily on common law for foreign nationals, codified in the Code de l Entrée et du Séjour des Etrangers et du Droit d Asile [CESEDA French code on immigration and asylum], while minors present on French territory benefit from legislation relating to the protection of children and cannot, in particular, be deported. However, special precautions have been introduced for unaccompanied minors arriving at French borders, the main one being the appointment of ad hoc administrators (AHA) to provide assistance with all aspects of the process. It should be noted that a relatively high proportion of minors arriving at French borders are sent back to their country of origin (with special precautions relating to their reception on arrival), representing around 30% in 2007 and Unaccompanied foreign minors who are present on French territory, whether they have granted admission or have managed to gain access, benefit from measures relating to the protection of children, the implementation of which is the responsibility of the child welfare [ASE - Aide Sociale à l Enfance] departments of the general councils (administrative bodies for the French départements). The legislation provides for two types of measure: measures governing the protection of minors in danger and the organisation of their care (in reception centres), treatment or education legal representation, mainly in the form of guardianship. This is the responsibility of child welfare (ASE) in the case of minors with no family in France. In view of the recent nature of the relatively wide-scale phenomenon of unaccompanied foreign minors on French territory, existing provisions, created for other groups of minors (abused children in particular), often prove inadequate, quantitatively and with regard to the specialisation of staff, in particular in regions with a high presence of such minors, the Ile de France region in particular. With the support of associations, some structures have recently been set up in the Paris region to receive and assist foreign minors. 4- Organising minors return to their country of origin often proves difficult to implement due to the issue of locating their families. The procedure is managed by the Office Français de l Immigration et de l Intégration [OFII - French Office of Immigration and Integration]. Since 2003, it has applied to 22 minors from countries outside the European Union. The average cost of a return is 1,245 euros. Conclusion: In view of the apparent long-term nature of the recent phenomenon of unaccompanied foreign minors on French territory, the competent authorities have introduced initiatives aimed at addressing this new challenge. The Défenseure des enfants [ombudsperson for children] has made a number of recommendations intended, in 4

5 particular, to facilitate the right to information and assistance of unaccompanied minors arriving at French borders and to improve representation and advice for those present in France in the long term. Moreover, the Ministry of Immigration, Integration, National Identity and Co-Development has just set up a working group in order to improve the reception and situation of these minors, and to ensure their return to their country of origin where this is desirable and possible. 5

6 1- INTRODUCTION 1-1. Definitions The European Union, in the Council Directive 2001/55/EC (article 2), defined unaccompanied foreign minors (UFM) as nationals of third countries below the age of 18, who enter the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person ( ) as well as minors who are nationals of third countries who are left unaccompanied after they have entered the territory of a Member State This definition is accompanied by the definition of the UN High Commissioner for Refugees (HCR): These are children under 18 years of age who are outside their country of origin, have been separated from their parents or their guardian by law or by custom The French state considers that any minor present on French territory without a legal guardian is potentially a minor in danger (art. 375 and of the Civil Code). France has also ratified texts relating specifically to the Rights of the Child: The Hague Convention of 5 October The International Convention on the Rights of the Child of 20 November It has also adopted general texts protecting Human Rights: The Declaration of the Rights of Man and the Citizen of 26 August the Universal Declaration of Human Rights of 10 December The European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November Measurement and complexity of the phenomenon The presence of unaccompanied foreign minors on French territory appears to be, in particular since the end of the 1990s, a long-term phenomenon calling for organised and systematic responses. However, the implementation of these responses is complex and delicate due to the legal situation of these minors, caught between legislation on the protection of children and legislation on foreign nationals. Moreover, exhaustive knowledge of these minors is difficult. In 2007, the French government estimated their approximate number as falling within a range of between 4,000 and 6, REASONS MOTIVATING UNACCOMPANIED FOREIGN MINORS (UFM) TO LEAVE THEIR COUNTRY OF ORIGIN AND THE COUNTRIES OF ORIGIN 2-1. A study by the French Department of Population and Migration (DPM) identified five categories of reasons for leaving a country of origin A study commissioned by the DPM (until 2007 attached to the French Ministry of Social Affairs) and published in 2002 (report by Angelina Etiemble published in the Migrations 6

7 review, issue 109, September-October 2002) listed a typology of five categories of UFMs depending on their reasons for leaving their country of origin. It found: exiles fleeing a region at war or persecutions: generally asylum seekers, options for their return are very difficult. The countries of origin most affected by this phenomenon are the Sub-Saharan African states. proxies sent to the West by their parents to continue their education or work and send money to their family back home. This category mainly concerns young people from Asia. exploited victims of trafficking (prostitution networks, criminal activities, begging, etc.). This category mainly affects young people from Eastern Europe (e.g. USSR). runaways. This scenario mainly involves minors from North Africa and Eastern Europe. wanderers. These minors were already living on the street in their home country and, in the course of their travels, have crossed several borders. These profiles are permeable and non-exhaustive. Minors may also be joining their parents or members of their family living in France. Moreover, a minor can belong to several of these categories or move from one category to another Countries of origin of UFMs The French government estimates the number of UFMs present on French territory in 2007 at between 4,000 and 6,000. With regard to the annual flow, we can estimate an average of just under 500, as examined below (in 3-2). With regard to the main countries of origin of UFMs, in the absence of exhaustive national data, we can make an estimate based on the number of asylum applications submitted. Most minors who are known to the authorities and who are present on French territory submit an asylum application (more than 400 per year 459 in 2007 and 410 in 2008 out of an estimated total annual flow of 500). In 2007 and 2008, these countries were as follows: the Democratic Republic of Congo was significantly ahead, on its own representing more than ¼ of first asylum applications (120 in 2008). in 2007 and 2008, Angola represented around 10% of first asylum requests. Turkey, Russia, Guinea-Conakry and Sri Lanka were each countries of origin for 4 to 8%, depending on the year, of UFMs making a first asylum application. 3- PROCEDURES FOR ENTERING FRENCH TERRITORY While UFMs present on French territory, benefiting from legislation relating to the protection of children as examined in more detail in 4 below, cannot be the subject of a deportation 7

8 measure, UFMs who arrive at French borders are generally subject to legislation governing foreign nationals, codified in the Code de l Entrée et du Séjour des Etrangers et du Droit d Asile [CESEDA French code on immigration and asylum]. These procedures governing entry to French territory apply to air, rail and maritime borders only. Minors who enter French territory by land borders (excluding rail stations) are regarded as being on national territory Checking procedures on entry to French territory Legal situation of UFMs arriving at French borders UFMs arriving at a maritime, air or rail border are in an almost identical situation to adults. During this phase, no special procedure is applied to minors on the basis of their age. Legislation governing foreign nationals, codified mainly in the CESEDA, applies. Thus, UFMs who are not admitted at the border and who are detained, if applicable in a waiting area, can be the subject of a deportation measure and sent back to their country of origin, unlike minors who are present on national territory who cannot be deported. However, all foreign minors can be the subject of a readmission measure to another Member State of the EU. They can also be sent back to their country at the decision of the children s judge, if he or she feels that this is in the child s best interests Legal framework for detention in the waiting area A UFM arriving at a maritime, air or rail border is subject to, as stated above, legislation governing foreign nationals, codified in the CESEDA. Thus, article L of the CESEDA states that a foreign national arriving in France by rail, sea or air and who is either not authorised to enter French territory, or requests admission as an asylum seeker, can be detained in a waiting area located in a railway station open to international traffic ( ), in a port or close to the disembarkation point, or in an airport for the time strictly required for his or her departure and, if he or she is an asylum seeker, to an examination intended to determine whether his or her request is clearly unfounded. However, some special provisions have been introduced in the interests of minors: article L of the CESEDA states that upon the arrival in the waiting area of a foreign minor who is unaccompanied by a legal representative, the public prosecutor (procureur de la République), notified by the administrative authority in application of article L (this article applies to all foreign nationals, whether they are adults or minors), immediately allocates him or her an ad hoc administrator (AHA). The ad hoc administrator helps the minor during the period of his or her detention in the waiting area and represents the minor at administrative and jurisdictional procedures relating to his or her detention. The ad hoc administrator also represents the minor in all administrative and jurisdictional procedures relating to his or her entry to France. Special precautions to protect minors throughout all stages of the procedure have been introduced by means of regulatory measures: Article 37 of the International Convention on the Rights of the Child states that every child deprived of liberty shall be separated from adults. Thus, during the detention period in the waiting area, measures introduced to reserve areas for minors become effective and generalised. Children below the age of 13 are placed in hotel rooms under supervision. 8

9 During the examination of an asylum application made by a UFM, the UFM is lodged in a specialised centre d accueil et d orientation pour mineurs demandeurs d asile [CAOMIDA reception centre for minors seeking asylum]. Finally, in the case of return to the country of origin, measures must be taken to ensure that a family member or a legal representative of the minor is present on arrival at the airport Progress made in strengthening and increasing the efficiency of the role of the ad hoc administrator Article L of the CESEDA sets out, in its 3 rd paragraph, that the AHA is appointed by the competent public prosecutor from a list of legal entities or individuals, the procedures for the creation of which have been set out by a decree in the Council of State. This decree, the provisions of which appear in the regulatory section of the CESEDA (articles R to R of the CESEDA), states that candidates for the role of AHA must fulfil various conditions, including proving their competence and a particular interest in issues relating to childhood. In addition, the public prosecutor must ask the opinion of many professionals in the area. These procedural aspects provide strong guarantees for the importance placed on the care of UFMs. However, they also explain the difficulty in finding a sufficient number of individuals to take on the role of AHA. Thus, with effect from the promulgation of the law no of 4 March 2002 on parental authority which introduced into French law the need for the public prosecutor to appoint an ad hoc administrator (AHA) in order to represent the minor in all administrative and jurisdictional procedures relating to his or her detention in the waiting area (and only in this case), difficulties have been encountered in recruiting a sufficient number of AHAs. These difficulties can be explained, in particular, by the lack of childhood specialists able to take on this role. Thus, in its report , the Senate s enquiry committee on illegal immigration found that in 2004, at Roissy-Charles de Gaulle airport, out of 650 cases, just 220 to 250 minors were allocated an AHA. To address these shortages, in 2005, the French Red Cross was entrusted with the function of AHA for UFMs detained in the waiting area at Roissy. Thus, in 2006, 80% of these minors received the assistance of an AHA. Due to a lack of staff, the Red Cross was unable to help all of these minors. The law no of 24 July 2006 relating to immigration and integration set out the need to appoint an AHA upon notification of refusal of entry to France rather than with effect from the time the minor is placed in the waiting area (article L of the CESEDA already quoted). With regard to the lack of resources, which may have been aggravated by these new provisions, a new agreement was concluded with the Red Cross in July 2007 to strengthen, mainly by improving their material conditions, the presence, in particular as AHAs, of volunteers from this association with minors in waiting areas and minors under the age of 13 placed in hotel rooms Asylum applications presented in prefectures by UFMs 9

10 A minor over the age of 14. The minor is recorded in the AGDREF database (AGDREF is a computerised application for managing foreign nationals residing in France. It records all residency documents.) as an asylum seeker if he or she is aged 16 or over. His or her fingerprints are taken and recorded in the EURODAC database, in application of article 4.1 of the EURODAC regulation. The public prosecutor is notified in order to appoint an ad hoc administrator. The ad hoc administrator has sole authority to sign the asylum application form and send it to the OFPRA. A minor below the age of 14. The prefect notifies the public prosecutor directly in order to organise the care of the child. The asylum application form is issued to the legal representative appointed by the public prosecutor Determination of age Establishing the minority of individuals who state that they are minors can prove difficult. In the event of doubt, the public prosecutor s department orders a medical examination, in particular a bone and dental assessment, as well as a general and psychological examination. According to the president of Bobigny Court of First Instance, with jurisdiction for Roissy- Charles de Gaulle airport, 25% of individuals who state that they are minors undergo this examination (2005 and 2006 figures), 50% of them being finally identified as majors. This method has been criticised, due to a certain lack of accuracy and the margin of error, estimated at 18 months for individuals over the age of 16. In the case of an asylum application, the Office Français de Protection des Réfugiés et Apatrides [OFPRA - French office for the protection of refugees and stateless people], responsible for the in-depth examination of this application, has sometimes found itself in contradiction with the competent public prosecutor s office. In this case, if the public prosecutor s office does not appoint an AHA, the asylum application is recorded at the OFPRA but will not be processed until the foreign national reaches the age of majority. The French national ethics consultation committee has been notified. In a notice of 23 June 2005, it found that there was a degree of inaccuracy in the method used, but acknowledged the difficulty in finding a 100%-reliable method. The method has therefore been refined and, in particular, the three complementary examinations, psychological, dental and bone, are systematically carried out at Roissy. However, other aspects are considered, including all elements likely to help establish the individual s civil status. These difficulties, and the controversies they have created, must not allow us to forget that establishing whether or not an individual is a minor has no effect on the decision on whether to admit him or her to French territory or detain him or her in the waiting area. It simply leads to the appointment of an AHA by the territorially competent public prosecutor. It also makes the issue of return more sensitive, since the administrative authority needs to ensure that the minor can be cared for in the destination country. However, the age assessment has a significant effect for foreign nationals who are finally admitted to French territory. If they are recognised as majors, they can be deported. If they are recognised as minors, they can claim administrative and legal assistance for minors, as examined below (in 4) Stabilised flows that remain relatively high 10

11 It is difficult to obtain accurate data to precisely measure the number of UFMs present on French territory or arriving at French borders (as defined above). The French government estimates that between 4,000 and 6,000 UFMs are present on French territory. To measure incoming flows, according to the Direction Centrale de la Police aux Frontières (DCPAF - central directorate of border police), current statistical tools do not allow any exhaustive census, at a national level, of UFMs arriving at French borders. However, the DCPAF has drawn up statistics for the five main entry points to France, representing 99% of all minors seeking to enter France (Roissy, Orly, Marseille-port and airport, Sète-port). The number of UFMs arriving at these five French borders was 604 in 2006, 852 in 2007 and 1,108 in 2008 (115 in January and February 2009). Asylum applications represent a significant proportion of UFMs arriving at the border (source: OFPRA). After the peak in 2001 (1,067 UFMs), the number of UFMs seeking asylum fell to 459 in 2007 (-19% in comparison with 2006) and 410 in 2008 (-10.7% in comparison with 2007). Of these totals, almost 37% of all UFMs were female. These UFMs come mainly from Africa (60% in 2007, more than 67% in 2008): the Democratic Republic of Congo and Angola came out on top. After Africa, Europe (with Russia accounting for the vast majority) is in second place (21% in 2008). It should be pointed out that Europe accounts for the highest proportion of applications submitted by women (46.8% in 2008). Admission rates to French territory were 18.4% in 2006, 25.4% in 2007 and 27.4% in The vast majority of decisions grant the status of refugee to admitted candidates (93% of UFMs admitted to French territory) A high proportion of minors are sent back Of the total number of unaccompanied foreign minors arriving at French borders, almost 1/3 were sent back to their country of origin in 2007 and 2008: 270 out of 852, i.e. 31.7% in 2007, and 353 out of 1,108, i.e. 31.9% in 2008 (after 366 out of 604 UFMs sent back, i.e. 60.6% in 2006). 4 RECEPTION AND POLICIES GOVERNING THE PROTECTION AND INTEGRATION OF UFMs UFMs present on French territory, whether they have been granted admission or have managed to gain access, benefit as minors from measures intended to protect children in danger. The law of 5 March 2007 relating to the protection of children clearly states that all minors with no distinction in terms of nationality are entitled to child protection as soon as they are deprived of the protection of their family. As indicated above, the presence of unaccompanied foreign minors on French territory has become a long-term phenomenon, primarily since the end of the 1990s. According to a report by the Inspection Générale des Affaires Sociales [IGAS French General Inspectorate for Social Affairs] of January 2005, these minors have different migration paths, as mentioned in the study (in 2-1 above) of the typology of reasons for migration, and come from different geographic areas. According to the IGAS s report, four non-eu nationalities dominate among the 62 nationalities represented by minors installed on French territory: the Democratic Republic of Congo (DRC), China, Morocco and Albania. The reasons for migration vary depending on the country. Young people from China tend to be seeking 11

12 education, while minors from Albania, in particular young girls, are more likely to be victims of human trafficking networks (prostitution networks). Originally restricted to certain départements (Paris, Seine-Saint-Denis), the phenomenon has spread to all areas of France, with unaccompanied foreign minors present in around sixty départements. We will examine, on the one hand, legal protection measures, and on the other recent social initiatives aimed at better considering the integration needs of UFMs Legal protection measures Consideration of the child s best interest means that unaccompanied foreign minors are regarded first and foremost as children, above their status as foreign nationals. As a reminder, once present on French territory, they can no longer be the subject of a deportation measure. They are therefore entitled to the same treatment in law as minors of French nationality Legal framework for protecting minors who are potentially in danger Measures for protecting minors, under the jurisdiction of the general councils (Aide sociale à l enfance: ASE [child welfare]) concern minors whose health, safety or morality is in danger or the conditions of their education are severely compromised (article 375 of the French Civil Code). The legislation concerns all minors, regardless of nationality. The jurisdiction of the general councils and the missions of child welfare [Aide Sociale à l Enfance] are organised by the French Family and Social Action Code, in particular articles L (child welfare missions, defined as prevention missions and protection of minors), L and L (child welfare benefits) and L (notification of minors in danger). It should be noted that in urgent cases, if the child welfare departments do not have the resources, especially in terms of staff and reception centres, to respond, the situation of an unaccompanied minor who may potentially be in danger can be notified, mainly by associations, to the competent public prosecutor. The public prosecutor can, as a matter of urgency, place the minor in care or in a hotel under a temporary placement order [OPP - ordonnance provisoire de placement] Legal representation Legal representation is the other aspect of the measures to protect minors. This concerns all minors, whether French or foreign, purely on the basis of their minority, provided that they are residing in France without one or both of their parents or any legal guardian appointed in the country of origin of a foreign minor. French law provides for two types of measure in this case: guardianship (articles 389 and 475 of the French Civil Code) takes two forms: 1- guardianship referred to the child welfare department: this guardianship is delegated to the child welfare department (ASE) for unaccompanied minors, whether French of foreign, without any family network. These minors are often already being cared for by child welfare (ASE) under article L223-2 of the French Family and Social Action Code, already quoted and relating to the notification of unaccompanied minors. The children s judge is notified and sends the file to the guardianship judge, who makes the decision regarding organisation of the guardianship. 12

13 2- guardianship with family council, decided by the guardianship judge, can be organised if the young person has family members in France. This measure actually only affects a very small number of unaccompanied foreign minors. delegation of parental authority (article 377 of the French Civil Code), like the previous measure, this only affects a very small number of unaccompanied foreign minors: it assumes the expression of will of the parents, who delegate the exercise of their parental authority, as well as the agreement of the person (individual or legal entity) who receives the minor. It should be pointed out that a foreign minor present on French territory who submits (in the prefecture) an asylum application must be represented by an ad hoc administrator, appointed by the competent public prosecutor, throughout the entire asylum application procedure (until the appointment of a guardian in application of the legislation just examined) Social measures to promote the integration of UFMs The legal procedure does not cover all aspects of the care of unaccompanied foreign minors The procedure for caring for UFMs, the responsibility of the general councils as examined above, does not, in particular in the Paris region, cover all aspects of the care of unaccompanied foreign minors, in view of the influx of UFMs over the last ten years or so. It also has gaps, due mainly to the fact that these institutions were set up, in particular foster care, to look after populations of minors with a very different profile, primarily battered or abused children, and are proving inadequate in many respects in promoting the integration of children from countries with very different cultures and whose migration paths have often been very unsettling for their developing personality as a child or young person. Finally, there is a lack of resources, in terms of both staff and premises, in many départements that have seen a radical increase in the number of UFMs over the last few years. The Centre d Accueil et d Orientation des Mineurs Isolés Demandeurs d Asile [CAOMIDA reception centre for minors seeking asylum] at Boissy-Saint-Leger in the Paris suburbs was set up in 1999 with the operational assistance of the association France-Terre d Asile, which is responsible for reception and providing assistance. In addition to the difficulty in identifying UFMs, the gaps in the legal procedure for receiving and caring for unaccompanied minors explain, according to the IGAS report referred to above, the fact that just over half of foreign minors are cared for under child welfare (ASE). Recent initiatives have therefore been introduced in order to improve care for these UFMs Creation of two structures in the Paris region In view of the difficulties experienced by traditional structures in caring for the influx of UFMs over the last ten years or so, in particular in the Paris region, ad hoc structures have recently been created to take urgent action in relation to receiving and caring for UFMs. 13

14 The state has set up an ad hoc institution, a reception and orientation centre (LAO- lieu d accueil et d orientation), at Taverny, in the Paris suburbs (95). In response to the influx of unaccompanied foreign minors at Roissy, the general council of Seine-Saint-Denis had asked the state to create this reception structure in The LAO opened in September This facility, managed by the French Red Cross under an agreement with the State, receives unaccompanied foreign minors when they leave the waiting area at Roissy- Charles de Gaulle airport, assesses their situation and works out the next steps. An experimental procedure was recently set up with the aim of combating the insecurity and exclusion of unaccompanied foreign minors in the Paris region Created in 2002 and modified in 2004, it is currently supported by the following associations: The association Enfants du monde droits de l Homme [EMDH - Children of the world Human rights] manages an 18-place reception centre at Kremlin-Bicêtre ARC, France-Terre d Asile and Hors-la-Rue manage emergency reception centres in Paris. These centres share three essential functions: shelter, support in relation to common law and, to a lesser extent, locating and making contact. In 2007, around 800 minors were sheltered and supported, for an average period of 6 weeks, for a budget of 2.77 million euros Application of article 17 of Directive 2005/85/EC of 1 December 2005 relating to detention of minors articles L and following of the CESEDA set out the period of time during which foreign nationals, both majors and minors, can be placed in waiting areas and detention centres, with legal guarantees. families are kept together wherever possible and unaccompanied minors are kept separate from adults, either in specially reserved sections of the waiting area if they are over 13 years old, or in hotel rooms if they are below the age of 13. At Roissy, nurses from airline staff look after minors. Redevelopment of the waiting area has been delayed and delivery of the works is now scheduled for early detention conditions have been tailored to suit minors. UFMs benefit from special provisions, in particular the assistance of an ad hoc administrator as soon as they are placed in detention. the child s best interest takes priority, both in relation to detention in the waiting area and repatriation to the country of origin. In the case of return to the country of origin, the administrative authorities ensure that the minor in question will be met by a parent or legal guardian. 5- RETURN OF MINORS TO THEIR COUNTRY OF ORIGIN 5-1. The procedure for assisting the return of unaccompanied foreign minors from countries outside the European Union 14

15 Legal framework The return of unaccompanied foreign minors is organised by the Office Français de l Immigration et de l Intégration [OFII - French Office of Immigration and Integration] in application of the Inter-ministerial Circular of 7 December , which sets out a foreign minor s eligibility to assistance with his or her return at the request of a judge or, if applicable, under a procedure aimed at reuniting a family in its country of origin or a host country Assistance covered by the OFII At the request of the children s judge, the OFII organises the return of the minors in cooperation with the different actors of childhood protection, child welfare [Aide Sociale à l Enfance (ASE)], as well as the accommodation and monitoring structures for the minors in question and accompanies them to their country of origin. In the absence of any bilateral agreements on the return of unaccompanied minors between France and the different third countries, the return of foreign minors is subject to advance contact with the families in the return country, to the agreement of the families with regard to the return of the minors, or where there is no family in the country, to the agreement of a specifically authorised body. In this respect, the assistance covered by the OFII includes: 5-2. Figures material organisation of the return (cost of plane ticket, luggage, transport to the departure airport). assistance in obtaining travel documents. coordination with the actors concerned (child welfare [Aide Sociale a l'enfance], children's judge, foster care, etc.). contact with the family or with the authorised body in the return country in order to work out the practical details of the return. accompaniment of the minor to the return country. hand-over of the minor to his or her family or the authorised body on arrival. Since 2003, the OFII 2 has repatriated 22 minors from countries outside the European Union according to the procedures described above. These minors, who had stayed in France for varying periods of time, were repatriated. This was not a case of minors who had been refused admission to French territory, as quoted in 3-3. On arrival, the OFII handed over all of these minors to their families. The average cost of a return, including travel costs for the minor and the accompanying OFII agent, currently amount to 1,245 euros. 1 Inter-ministerial Circular DPM/ACI3/2006/522 of 7 December 2006 relating to the procedure for assistance with the voluntary return of minors in an illegal situation or a state of destitution 2 In total, 78 minors were repatriated, including 56 minors from within the European Union (46 Romanians in application of the Franco-Romanian bilateral agreement of 04/10/2002, 4 Bulgarians, 4 Lithuanians and 1 Spanish national. 15

16 Summary table of returns by nationality (source: OFII): Country Apr 09 total AFGHANISTA N ANGOLA 1 1 ARMENIA BRAZIL 1 1 BULGARIA CAMBODIA CAMEROON 1 1 CHINA COMOROS 1 1 SPAIN 1 1 GUINEA 1 1 (CONAKRY) KOSOVO 1 1 LITHUANIA MACEDOINA 1 1 MOROCCO 1 1 PARAGUAY 1 1 ROMANIA SLOVAKIA 1 1 VIETNAM 1 1 TOTAL CONCLUSION: RECENT ADVANCES IN THE PROTECTION OF UNACCOMPANIED FOREIGN MINORS: TOWARDS THE HARMONISATION OF PRACTICES IN THE CHILD S GREATER INTEREST 6-1. Implementation of the recommendations of the Défenseure des Enfants Avenues recommended by the Défenseure des Enfants A conference, organised by the Défenseure des Enfants in June 2008, brought together professionals dealing with the arrival of unaccompanied foreign minors on French territory. This represented a first step towards the harmonisation of national and then European practices, intended to improve management of these children on arrival in France. It highlighted best practices and enabled exchanges between all actors present (institutions, associations, lawyers). The Défenseure des Enfants wished to initiate national reflection and recommendations, by bringing together all actors working with unaccompanied foreign minors (UFMs). The issues identified, such as the inadequate numbers of ad hoc administrators, the difficulty in differentiating minors from majors, the difficulty experienced by minors in obtaining training, inequality of care between different European countries, and many more, are bringing the actors towards a consensus and the 16

17 establishment of proposals to be submitted to the French President and ministers, with the aim of promoting awareness and the harmonisation of practices. The conclusions of the Défenseure des Enfants cover the following points: Better respect of the right to information of minors arriving by air, in particular the rights of UFMs in waiting areas, by extending the system of ad hoc administrator and its effectiveness by means of the recent measures described above. Immediate protection of minors arriving by land: more active intervention by the bodies involved in protecting unaccompanied foreign minors, in particular thanks to the creation of new ad hoc structures in the Paris region, as described above. Progress needs to be made in relation to validating minority in accordance with legal, ethical and deontological principles (civil status, bone examination). Progress needs to be made with regard to equality of rights in comparison with other young people of the same age: education and professional training. Efforts made to create a lifetime project with the young foreign national and all associations and institutions involved: lifetime project and assistance with voluntary return and procedures for formalising the young person s stay The implementation of the most immediately practicable recommendations of the Défenseure des Enfants Point I: Facilitate and personalise the right to information of unaccompanied foreign minors arriving by air - recommendation 1: Increase the pool of interpreters in the most common languages Article R specifies the provision of an interpreter by the administration. For less common languages, the regulatory text provides for the possibility of using a telephone interpreter. By a decision of the Ministry of Immigration, Integration, National Identity and Codevelopment of 10 April 2008, approval as an interpreting and translation body under the provisions of article L of the Code de l'entrée et du Séjour des Etrangers et du Droit d'asile [French code on entry and asylum] was granted to the association InterService Migrants- Interpretariat, headquartered at 251 rue du Faubourg Saint Martin, Paris, for a period of one year from the date of this decision. This need for good understanding has therefore been considered by the government. - recommendation 2: Incorporate a systematic explanation time by authorised associations by increasing the time they are present in the waiting area The provisions of article R of the CESEDA also set out access to the area by representatives of authorised associations. In this respect, the Association Nationale d'assistance aux Frontières pour les Étrangers [ANAFE national association for the assistance of foreigners at borders] operates on the airport site of Roissy-Charles de Gaulle (arrival point of 95% of unaccompanied foreign minors) under an agreement concluded with the government in 2004, since renewed, and under the regulatory provisions of the CESEDA, which allows it to have a total of 25 representatives on the site. Article 1 of the agreement 17

18 sets out, among other aspects, that the aim of the mission entrusted to the ANAFE is to meet detained foreign nationals, provide them with useful information and assistance in legal matters in order to best guarantee the effective exercise of their rights. The involvement of authorised persons takes the form of maintaining a presence and visiting the international area. The other associations each receive 10 individual approvals for their representatives. There is no plan to restrict presence times in the CESEDA. - recommendation 3: Reintroduce the automatic nature of the jour franc for all unaccompanied foreign minors (removed in 2003), to enable them to receive useful information and advice in relation to their situation With regard to the jour franc (24-hour period, if this period expires on a Sunday or a public holiday, it is deferred by 24 hours), the benefit of this is set out by article L of the CESEDA. However, the individual in question can waive this right if his or her return transport can be organised very quickly and if he or she agrees to this. Where an unaccompanied minor does not meet the conditions for entering France, he or she must be the subject of a non-admission and systematically placed in the waiting area, even if he or she has waived the right of the jour franc. - recommendation 4: Separate minors from adults according to the International Convention on the Rights of the Child and introduce a special procedure for minors under the age of 15 (suitable accommodation, catering and supervision) With regard to the separation of minors and adults in waiting areas, this takes place, in particular, at Roissy-Charles de Gaulle airport, where minors below the age of 13 are cared for in a hotel. Work has been carried out to set up a special section within the waiting area to be dedicated solely to minors below the age of 13 (4 bedrooms immediately, with a possible extension to 6 bedrooms). Mediators from the French Red Cross responsible for assisting detained minors will perform this mission 24 hours a day. To this end, at the renewal of the special agreement for minors concluded with the government, it was agreed that an additional 2.5 FTEs would be recruited in order to bring the total number of FTEs to 6. Minors over the age of 13 can be lodged in the waiting area accommodation structure. Strict separation is ensured between unaccompanied minors and majors, with particular attention paid to their detention conditions in the waiting area. - recommendation 5: Systematically suggest a medical inspection for all minors and psychological support for those who wish The applicable law does not provide for any systematic medical inspection for minors. While the provisions of article L of the CESEDA specify that a foreign national detained in a waiting area can request medical assistance, there is no provision for a systematic visit. However, in the event of doubt about a minor s actual age, the border police services call in hospital departments to carry out a bone examination in order to determine the age of the individual in question. In all circumstances, the public prosecutor is informed of the matter. The results of this examination are sent to the public prosecutor who is responsible for determining whether the foreign national should be regarded as a major or a minor and whether the procedure for appointing an ad hoc administrator should apply. 18

19 Point II: Recommendations to strengthen assistance, representation and advice for unaccompanied foreign minors - recommendation 1: Set up a procedure to reduce delays at all levels preventing the effective presence of an ad hoc administrator with the unaccompanied foreign minor. Article L of the CESEDA covers the appointment of the ad hoc administrator. For information, in the first quarter of 2008, 476 foreign nationals declared themselves as minors. 430 were found to be minors. 420 minors were allocated an ad hoc administrator. - recommendation 2: Rapidly publish a decree defining the conditions for exercising the mission of ad hoc administrator with unaccompanied foreign minors and reassessing the amount of compensation by adjusting this according to the progress of the procedure The regulatory provisions of the CESEDA articles R to R cover the procedures for appointing and compensating ad hoc administrators. - recommendation 3: Encourage the recruitment of ad hoc administrators to ensure that each unaccompanied foreign minor can be allocated an AHA The mission of ad hoc administrator is performed mainly by the French Red Cross, which prepares an annual report relating to the execution of the missions entrusted to it by the territorially competent public prosecutor s office. The minister responsible for immigration was notified of the lack of ad hoc administrators and the fact that this is resulting in a regrettable lack of consistency in decisions, and has sent a letter to the Ministry of Justice in order to rectify this situation. In fact, some judges believe that, provided the ad hoc administrator has been duly called, the procedure is regular despite the absence of the ad hoc administrator at the hearing. Other procedures are regarded as invalid due to the absence of the ad hoc administrator. The terms of the letter referred to above call for increased awareness among public prosecutors at courts of first instance of the need to increase the number of individuals and legal entities who can appear on the list of ad hoc administrators and invite them to issue a call for applications. This is in fact the process followed by the departments of the Lyon Court of Appeal, which appointed ad hoc administrators from among the members of the association Forum Refugiés. - recommendation 4: Extend jurisdictional assistance to allow the young person to receive the assistance of a lawyer beyond majority and up to the age of 21 in all procedures relating to obtaining status on French territory, and in particular in situations where not all avenues of appeal have been exhausted. With regard to the jurisdictional assistance which the unaccompanied minor should receive beyond the age of majority in order to explore all avenues of appeal, this assistance is set out by the provisions of article 3 of the law no of 10 July 1991 relating to legal aid The creation of a working group by the Ministry of Immigration, Integration, National Identity and Co-development (MIINDS) The ministry for immigration has decided to create a working group on unaccompanied minors, pursuing two key focuses: their arrival in France and their situation after admission 19

20 or once present on French territory. The installation of this working group will take place at a meeting on 11 May The ministry has decided to create an inter-ministerial working group whose mandate will consist of examining the various aspects of the issue of unaccompanied minors The arrival of unaccompanied minors at the air border This issue mainly affects Roissy-Charles de Gaulle airport which in 2008 recorded 1,068 arrivals of unaccompanied minors out of a total of 1,116 in the metropolis. At a meeting on 10 February 2009, it was decided to implement a number of measures, including: sending the prefectures a circular reminding them of the need for the annual personal appearance of the minor when requesting the issue of the DCEM (circulation document for foreign minors) or the TIR (identity document of the French republic) and at the issue of these documents. guaranteeing the security of these documents by means of biometry. harmonising figures relating to the fine procedure for transporters, in view of the substantial differences noted, and a reminder of the obligation to draw up these procedures in a systematic manner. With regard to this latter point, a meeting was held between the MIIINDS and the DCPAF on 5 March. It was agreed that the MIIINDS would prepare a draft circular aimed at serving as a reminder of the procedures for the application of the circular of 15 February Work also focused on reducing delays in the transmission of procedures. In the event of the admission of an unaccompanied minor, the texts provide for the appointment of an ad hoc administrator by the competent public prosecutor s office. This provision raises three difficulties: no appointment, late appointment and lack of administrative resources. The question of late appointment is currently being resolved thanks to the use of faxes by the PAF departments, enabling them to notify the competent departments of the Bobigny court of first instance faster. However, despite this new procedure, custodial judges (JLD - Juge des Libertés et de la Détention) are continuing to release unaccompanied minors for this reason. It is possible that the public prosecutor s office may have made the appointment but the association is unable to fulfil the mission, generally due to a lack of available volunteers. Between them, the two associations operating at Roissy (French Red Cross and Famille Assistance) have 15 ad hoc administrators. Several letters have been exchanged between the MIIINDs and the Ministry of Justice, highlighting a difference in opinion with regard to the provision of this staff. This point will be included in the agenda for the next meeting with the Ministry of Justice scheduled for 10 April. In addition, the general secretariat requests the preparation within eight days of two sheets, the first relating to the implementation schedule for the minors area at the ZAPI, the waiting area at Roissy airport, and on the timetable for the preparation of the additional agreement, the second relating to the issue of the deprival of freedom of unaccompanied minors in the event of an asylum application. 20