Migrant children: what rights at 18?

Transcription

1 Prvisinal versin Migrant children: what rights at 18? Reprt 1 Cmmittee n Migratin, Refugees and Displaced Persns Rapprteur: Ms Mailis Reps, Estnia, ALDE 1 Reference t Cmmittee: Dc , Reference 3800 f 3 Octber F Strasburg Cedex assembly@ce.int Tel: Fax:

2 Cntents Page A. Draft reslutin... 3 B. Explanatry memrandum by Ms Reps, rapprteur Intrductin The current situatin The legal cnsequences The strategy envisaged A single bjective: autnmy The imprtance f a life prject Establishing a transitin categry Cnclusins and recmmendatins

3 A. Draft reslutin 2 1. Whereas reaching the age f majrity is a milestne t be celebrated fr mst yung peple, fr unaccmpanied migrant children it means lsing their rights and, in many cases, being bliged t leave the cuntry where they have lived and frged links. 2. Cnsequently, it is necessary t fill this legal vid in rder t help thse yung peple make a successful transitin frm childhd t adulthd, including in the case f yung refugees r asylum seekers. 3. The Assembly bserves that there is n legal instrument r even cnsensus with regard t prcedures fr assessing a persn's age and stresses the need t give the benefit f the dubt, bearing in mind the higher interest f the child. 4. The Assembly emphasises the psitive aspects f initiatives taken by certain Cuncil f Eurpe member States, such as France, Hungary, Ireland, Spain and the United Kingdm, t prvide alternative care and supprt slutins. 5. The Assembly ntes hwever that the lack f harmnisatin f administrative prcedures engenders a great many incnsistencies, in mst instances leaving yung migrants with n ther chice than t carry ut undeclared wrk in pr cnditins, as they have n financial supprt. 6. The impssibility f accessing justice, decent wrk r husing makes these yung migrants even mre vulnerable by preventing them frm attaining financial independence and expsing them t the risks f being caught up in the nets f drug trafficking, prstitutin r trafficking in human beings. 7. The Assembly recalls Cmmittee f Ministers Recmmendatin (CM/Rec. (2007) 9) n life prjects fr unaccmpanied migrant minrs and als the Eurpean Unin's Stckhlm Prgramme , which aim t help yung migrants becme fully respnsible fr themselves and achieve a gd level f autnmy. 8. The Assembly is cnvinced that establishing a life prject taking accunt f a yung migrant's past and cultural identity cnstitutes an imprtant basis fr develping their autnmy and sense f respnsibility. 9. In this cntext, establishing a transitin categry wuld facilitate successful ecnmic, scial and cultural integratin while guaranteeing supprt and assistance measures. 10. In view f the abve, the Assembly calls n member States f the Cuncil f Eurpe t: 10.1 take due accunt f the specific situatin f unaccmpanied yung migrants wh are reaching adulthd, bearing in mind the higher interest f the child; 10.2 give yung migrants the benefit f the dubt when assessing their age and ensure that such assessment is made with their infrmed cnsent; 10.3 bear in mind that family reunin remains an integral cmpnent f the life prject, including thrugh vluntary return; 10.4 establish a transitin categry, between the ages f 18 and 25, t help yung migrants, and take plitical measures geared t: welfare assistance and educatin; access t infrmatin n the relevant administrative prcedures; extensins f husing assistance; access t health care; 10.5 prvide fr specific training measures fr scial wrkers and anyne dealing clsely r remtely with yung migrants; 2 Draft reslutin adpted unanimusly by the Cmmittee n 13 March

4 10.6 raise the awareness f civil sciety as an intermediary between the public administratin, the authrities and yung migrants; 10.7 intrduce a schl prgramme alng the lines f the EU Lenard da Vinci prgramme, enabling yung migrants t have a special dcument allwing them t travel; 11. The Assembly als recmmends that lcal authrities demnstrate empathy and creativity in drawing up a plicy fr the integratin and participatin f yung migrants in lcal public life. 4

5 B. Explanatry memrandum by Ms Reps, rapprteur 1. Intrductin 1. Fr mst adlescents, reaching their majrity means freedm and independence. But fr many migrant children, this stage in their lives is ften a nightmare. Fr these children, reaching their majrity als means becming an undcumented adult migrant and lsing a range f rights and prtectin available t them as children. Unaccmpanied children are n mre taken in care and scial assistance and face a lwering f their living cnditins. The vast majrity are bliged t leave the cuntry where they have frged links and risk being placed in detentin. 2. At present there are n legal instruments designed t prtect them and accmpany their transitin t adulthd, which shuld be a cause fr celebratin and an imprtant stage in the life f all children. 3. The first aim f this reprt is t take stck f the prblems encuntered by unaccmpanied migrants children during their transitin t adulthd and t ask states and the authrities cncerned t intrduce measures t ensure that this transitin is successful, irrespective f whether they are refugees r asylumseekers, and whether they migrated r reside independently, with family members r in state care arrangements, while bearing in mind that the main bjective is t make them autnmus and independent. 4. In this cntext, attentin shuld be drawn t the Cmmittee f Ministers Recmmendatin (CM/Rec(2007) 9) n life prjects fr unaccmpanied migrant minrs and the Eurpean Unin s decisin t make unaccmpanied minrs a pririty plicy issue within its Stckhlm Prgramme. 5. This reprt takes accunt f the cnclusins f the cnsultative meeting n Challenges faced by yung refugees and asylum seekers in accessing their scial rights and their integratin, while in transitin t adulthd, held by the Strasburg Eurpean Yuth Centre n 17 and 18 Nvember 2011 (DJS/CM Refugees (2011) 7) and the discussins held at the Rund Table with the participatin f yung migrants, rganised in, c-peratin with the Eurpean Yuth Centre in Budapest and the United Natins High Cmmissiner fr Refugees (UNHCR) n 14 and 15 January The current situatin 6. Migrant children in an irregular situatin, as all ther children, are prtected by internatinal law n the rights f children and in particular by the UN Cnventin n the Rights f the Child which applies equally t all children regardless f their residence r migratin status. While there is still a large gap between the rights accrded t migrant children by the UN Cnventin and their access t rights in law and practice at natinal and lcal level, migrant children benefit frm certain additinal prtectin measures due t their status as children, especially if they are unaccmpanied. 7. In mst Cuncil f Eurpe member states, unaccmpanied children have access t alternative care arrangements and supprt frm the State. Children residing with their families in an irregular situatin children f undcumented migrants 3 and thse that are undcumented themselves are affrded sme additinal prtectin in sme member states, fr example, regarding access t educatin, health care and shelter, and in sme cases prtectin frm detentin and deprtatin. Hwever, when migrant children becme adults they enter a new stage f their life and lse thse additinal rights and prtectin, ften frm ne day t anther The legal cnsequences 8. In mst Cuncil f Eurpe member states, nce unaccmpanied r undcumented migrant children reach their majrity there are several situatins in which they may find themselves: having t apply fr internatinal prtectin; being returned t their cuntry f rigin; r remaining in an irregular situatin. Therefre, these children, in rder nt t be unfuded r credible, have t ldge an applicatin when they arrived. 3 In sme Cuncil f Eurpe member states, there is n legal categry f an undcumented child as children are nt required t have residence dcuments. Fr example, in France until age 18 and in Ireland until age 16, n residence r immigratin dcuments are required. While children in these cuntries still face limited access t services in law and practice and are affected by the irregular migratin status f their parent(s), they are technically nt undcumented migrants. Nte that children f undcumented parents can als have regular residence status r even citizenship but still be affected by the status f their parent, but as these children wuld nt face the same challenges n reaching the age f majrity, they are nt the subject f this reprt. 5

6 9. In the United Kingdm, fr example, where mst unaccmpanied migrant children in an irregular situatin are frm Afghanistan, Iraq, Iran, Eritrea, China and Taiwan, several pssibilities are ffered, i.e. the granting f a residence status t allw them t stay lnger and t have the pssibility t seek asylum, which entails the right t husing but nt the right t wrk and n assistance with educatin. These authrisatins are granted n a discretinary and case-by-case basis. 10. Anther pssibility is that f their return t their cuntry f rigin. If this return is vluntary, the migrant children wuld receive assistance and if nt, he r she wuld be at risk f being placed in detentin. Hwever, migrant children in an irregular situatin are nt deprted t their cuntry f rigin if they have n dcuments that identify their cuntry f rigin r if the deprtatin wuld vilate the yung migrants human rights. 11. In Hungary, prjects have been set up t allw unaccmpanied migrant children t cntinue their studies, nce they becme adults. Depending n their degree f interest, diligence and success, the csts f these yung migrants studies may be met by the authrities. In this cntext, it shuld be pinted ut that Hungary has altered its system fr the receptin f unaccmpanied children and childhd prtectin bdies nw have a mre imprtant rle t play. 12. In Spain, mst unaccmpanied migrant children are frm Algeria, Mrcc, Rmania and Sub- Saharan Africa and are aged between 14 and 18. Their bjective is t btain fficial dcuments and t wrk. 13. Spain has set up s-called street educatin prgrammes in Madrid and Barcelna t help children living in the streets t gain access t the childhd prtectin system thrugh nn-schl educatin. Indeed mst f them refuse t g t schl and prefer vcatinal training. It shuld be pinted ut that children under fficial guardianship can acquire Spanish natinality after 2 years and if they have a wrk permit it des nt expire when the legal guardianship cmes t an end. 14. In Spain, a prgramme has been set up t help yung migrants t becme autnmus and when these yung migrants reach their majrity, there is a special prgramme t help them becme independent, including transitin husing, with prgrammes designed t help and take care f them until they becme cmpletely independent. 15. In Ireland, the respnsible authrities fr separated children cntinue t prvide supprt fr yung migrants in care as they turn 18 and fr a number f years. Fr example, the appinted scial wrker still attends all interviews and any appeal hearings and any curt appearances related t asylum r migratin status in the cuntry, and supprts their applicatins. A jint inter-departmental plicy has als been develped t place yung migrants leaving care that claim asylum in specific family centres within the adult accmmdatin system that have aftercare supprt t meet their needs. 16. In France, yung undcumented migrants wh have successfully cmplete their educatin and have their baccalauréat, have the right t enrll at university at the same cst as French students. They still face administrative and financial barriers, and remain at risk f detentin and deprtatin, but the right t further educatin is prtected in law and prvides additinal future perspectives fr yung undcumented migrants The strategy envisaged 17. Bearing in mind the need t cnsider these yung migrants first and fremst as children, and bearing in mind the Curt s judgment in the Rahimi v.greece case (ECHR, case 8687/08 f 5 April 2011) 4, all yung migrants, as children, have the inalienable right t adequate care and t a legal guardian if unaccmpanied, and the state has an bligatin t prvide children with the necessary assistance Acknwledging the transitinal phase 18. As I already mentined abve, reaching their majrity is an imprtant stage in the life f yung migrants, wh suddenly lse the scial, ecnmic and educatinal rights t which they were entitled as children. Unaccmpanied children lse, in particular, the right t accmmdatin in a special hme fr yung peple r in fster care arrangements, ecnmic supprt and their fficial guardian. Where undcumented families are in state prvided shelter due the child s need, as can be the case in Belgium fr example, they are als liable fr evictin when the yungest child turns 18. Yung undcumented migrants are ften placed 4 The case Rahimi v. Greece cncerned the cnditins in which a minr, wh had entered Greece illegally, was held in the Pagani detentin centre and subsequently released with a view t his expulsin. The Curt cndemned Greece fr inadequate care en unlawful detentin f an unaccmpanied minr seeking asylum. 6

7 in detentin and deprted t their cuntry f rigin, which they may n lnger remember and with which they n lnger have any cntacts. 19. Anther ften neglected aspect is that f the lack f harmnisatin f administrative prcedures. During my discussins with a number f yung migrants, they tld me abut the bstacle curse they had t wrk thrugh, given the number f administrative incnsistencies. 20. In the eyes f the scial welfare services, yung migrants wh have becme adults are n lnger entitled t scial benefits whereas emplyment agencies r the States still cnsider them as minrs and d nt pay any f the benefits usually paid t adults. Yung migrants therefre find themselves withut any financial supprt, and frced t wrk irregularly, ften in pr cnditins, in rder t survive. They als face challenges renting decent husing in the private market, due t discriminatin in law and practice, lw and unstable incme, and the inability t cnclude r enfrce cntractual agreements. In bth the labur and husing markets, the lack f access t justice r redress fr vilatins f rights make yung migrants vulnerable t living and wrking in explitative cnditins. They are als unable t pen bank accunts, further reducing their ecnmic empwerment and meaning they have t rely n infrmal financial services. 21. In this cntext, many yung migrants end up living n the streets, where they are expsed t greater risks f being caught up in the nets f drug trafficking, prstitutin r human trafficking. 22. But befre they can acknwledge this transitin phase, the authrities must be able t determine the age f yung migrants. In the light f the abve, an errneus age determinatin may play an aggravating rle. This will be even greater if the age f the child cncerned has been wrngly determined, finding him/her lder than waht he/she is in reality Prcedures fr age assessment r presumptin f minrity 23. During the discussins which were held but als during my visit t the Ft (Hungary) detentin centre, ne f the mst frequently asked questins was hw t assess age. 24. In this cntext it shuld be pinted ut that, in 2006, the UN Cmmittee n the Rights f the Child said that yung migrants age shuld be assessed by nt nly their physical appearance but als their psychlgical maturity. 25. At present there are n legal instruments r any Eurpean regulatins fr determining age and the principle f the benefit f dubt must therefre be applied. 26. It is true that we nw have state-f-the-art equipment and that bne x-rays and ther radilgy r dental examinatins make it pssible t assess the apprximate bilgical age f the persn cncerned. Hwever, the reliability f these have been brught int questin and sme techniques such as X-rays remain questinable frm the medical and ethical pint f view and are cntested by internatinal rganisatins. 27. In Reslutin 1810 (2011) the Parliamentary Assembly already underlined and drew the relevant authrities attentin t the lack f cnsensus n prcedures fr assessing age and recmmended, amng ther things, that age assessment shuld nly be carried ut if there are reasnable dubts abut a persn being underage and that the assessment shuld be based n the presumptin f minrity by an independent authrity( ) If dubts remain that the persn may be underage, he r she shuld be granted the benefit f the dubt. 28. I wuld als like t underline the imprtance f and the need t carry ut such tests with the agreement f the child r f his r her guardian and the invlvement f experts frm different disciplines. 3. A single bjective: autnmy 29. In the light f the abve, it ges withut saying that the bjective is t prvide yung migrants with the best pssible help in making the transitin t adulthd s that they can becme fully respnsible fr themselves and achieve a gd level f autnmy. 30. The aim f this reprt is nt t create dependency thrugh nging help and assistance, but t ensure that they can act independently as respnsible adults. 7

8 31. In this cntext, attentin shuld be drawn t the wrk already carried ut at the Cuncil f Eurpe n life prjects fr unaccmpanied migrant minrs (Recmmendatin CM/Rec(2007) 9) The imprtance f a life prject 32. A life prject is a plan that is drawn up by and negtiated between a child and the authrities f the destinatin cuntry. It is a persnal plan as it takes accunt f the child s past and his cultural identity and aims t give him r her prspects fr the future, while taking int accunt the best interests f the child. Life prjects ffer an imprtant basis fr giving yung migrants the pssibility t develp their autnmy and their sense f respnsibility s that they can becme active members f sciety as quickly as pssible, irrespective f whether r nt they remain in the destinatin cuntry. 33. It ges withut saying that the persns clsest t yung migrants, whether it be in the cntext f the life prject r in their everyday lives (at schl, friends, etc..) play a very imprtant rle in helping them t becme independent when the time cmes. 34. In this cntext, it was extremely interesting that fr unaccmpanied yung migrants, fr ecnmic reasns, their family in their cuntry f rigin remained mst imprtant fr yung peple as it prvided supprt at bth the emtinal and financial and educatinal level and prtectin. 35. Family reunificatin must therefre cntinue t be an integral part f the life prject, either thrugh vluntary return t their cuntry f rigin r family reunificatin in the destinatin cuntry. 36. During the discussins I had with these unaccmpanied yung migrants, it was pinted ut that scial wrkers played an imprtant, if nt the mst imprtant, rle. 37. It is scial wrkers wh shuld guide, infrm, keep an eye n and advise yung migrants. Unfrtunately a large number f factrs (e.g. staff shrtages, teaching crisis and lack f training) shw that mst f the time these scial wrkers d nt have the necessary training. This applies t virtually all Cuncil f Eurpe member states. 38. Giving yung peple the pssibility t attain a certain degree f independence is nt enugh. In the light f expectatins, it wuld seem necessary t establish a transitin status fr migrants wh have just reached their majrity and t cntinue t grant them, during the transitin phase, the mst elementary rights, which are a cnditin sine qua nn fr autnmy, and a successful integratin Establishing a transitin categry 39. Frm the different discussins it became clear that yung migrants are ften helpless when faced with the lack f infrmatin cncerning their rights, the prcedures t be fllwed, the dcuments t be presented and the different frms t be cmpleted. 40. This is all the mre relevant when they enter the transitin phase t ensure their successful ecnmic, scial and cultural integratin. But in rder t achieve this gal it is crucial that measures are intrduced t supprt and assist them. 41. In view f the abve, if yung migrants were cnsidered as a separate grup, they culd, when they reach their majrity, benefit frm plicies and practices that meet their specific needs. 4. Cnclusins and Recmmendatins Plicy-makers shuld take accunt f the specific situatin f unaccmpanied migrant children wh are reaching adulthd. A special transitin status shuld be established, between the ages f 18 and 25, depending n the individuals cncerned, t help them until they can act independently, by taking plicy measures n : Welfare assistance and educatin. Access t infrmatin n the relevant administrative prcedures. Extensins f husing assistance until slutins are fund. Access t health care. Measures t ensure specific training fr scial wrkers. 8

9 Furthermre, it will als be necessary t; Raise the awareness f civil sciety as an intermediary between the public authrities and yung migrants. Ask the authrities cncerned t give yung migrants the benefit f the dubt when it cmes t assessing their age; such assessment shuld nt be made withut the infrmed cnsent f the persn cncerned. Intrduce a schl prgramme alng the lines f the EU Lenard da Vinci prgramme, enabling yung migrants t have a special dcument allwing them t travel. 9