Guidance to respect children’s rights in return policies and practices. Focus on the EU legal framework

Source : UNICEF, the UN Human Rights Office (OHCHR), the International organization for Migration (IOM), Save the Children, the Platform for International Cooperation on Undocumented Migrants (PICUM), the European Council for Refugees and Exiles (ECRE) and Child Circle

Date : september 2019

Contents :

Purpose of the guidance

Legal and policy context

Scope of the guidance and key terms

Introduction : When does the question of return of children arise and how are their best interests considered ?

Identifying and implementing durable solutions : Summary overview

Flowchart : Steps for the procedure and implementation when return is a durable solution in the best interests of the child

1. Developing the best-interests procedure for the identification of durable solutions

  • 1.1 Designing the procedure

Considerations for all children
Additional safeguards for unaccompanied and separated children
Additional safeguards for children with their families

  • 1.2 Factors to be considered in the procedure

Considerations for all children

Additional considerations for unaccompanied and separated children

  • When the child is unaccompanied or separated, authorities must assess the care and custodial arrangements that would be in place upon return to ensure that they would be adequate and appropriate for the individual child
  • Family tracing should only be done by qualified actors, following a best-interests assessment to ensure restoring contact would not be contrary to a child’s best interests, and with the child’s informed consent (or in certain circumstances, an individual with parental authority). Where family has been traced, to decide whether family reunification is in the child’s best interests, it is necessary for child protection actors to assess, whenever possible through a family assessment, whether the family is willing and able to receive the child and provide suitable immediate and long-term care, and take into consideration both the child’s and the family’s views on reunification.
  • Where tracing is unsuccessful or where family reunification is found not to be in the child’s best interests, the procedure must consider the quality and suitability of alternative care arrangements in the short, medium and long term. Return should never cause children to become homeless. Communitybased care solutions should be prioritised. The use of residential care should be limited to cases where such a setting is specifically appropriate, necessary and constructive for the child concerned and in their best interests. Large residential care facilities (institutions) are not an adequate care arrangement for children.
  • Where family tracing was found to be in the child’s best interests but was not successful during the initial process, authorities should support children that wish family tracing efforts to continue, while taking into account the child’s best interests.

As noted above, actors carrying out the procedure should make proactive efforts to gather country of origin information, for example through a social assessment in the country of residence and/ or country of origin, conducted by qualified and impartial agencies. They should seek out expertise on the situation of children in the country of origin, such as conditions for accessing education and health services, or risks of discrimination, violence or detention of family members on return. Child specific country of origin information is crucial. Specific information will be required in certain cases, for example where there are specific health related needs. In some cases of unaccompanied children, a family assessment in a third country may be required

  • 1.3 Outcomes of the procedure

2. Implementation of a return decision in the best interests of the child

  • 2.1 Voluntary Departure

Considerations for all children
Additional safeguards in cases of unaccompanied children

  • 2.2 Essential safeguards before proceeding with removal if voluntary departure does not occur

3. Children’s data. Use of personal data of children in return procedures

4. Ageing out. Protection needs do not end on a child’s 18th birthday

The transition into adulthood is a period of identity formation and emotional development, which does not take place overnight when turning 18 years old. It can be a vulnerable period for development for any young person, even without uncertainties over migration status.

Further, current practice frequently dictates that protection on the basis of children’s rights ends at 18 years of age. For children in migration, particularly those who have been provided with temporary protection until 18, those whose applications for international protection are still pending, and those irregularly residing on EU territory, this can result in a significant loss of rights. From one day to the other, a child goes from being a child with a set of associated rights, to an adult. In practice, this may mean losing their right to access education, losing their residence permit, and being subject to detention and removal. For children in care, this can mean losing their accommodation and support services.

This transition can leave the young person even more vulnerable than when they were under 18. Knowing that they will face this uncertain and precarious situation on turning 18 also negatively impacts the children’s wellbeing while they are children, during this important period of psycho-social development. A number of measures should be taken both to limit the challenges that young people face during this transitional period and provide them with necessary support.

› If it is found that it is in the best interests of a child to remain and settle in the country of residence, they should be provided a secure, long-term or “settled” residence status.

› If the child turns 18 during the course of the procedure, the procedure must be completed with the same safeguards, and the durable solution found to be in the best interests of the child implemented according to the procedure set out.

› The period of coming of age should be acknowledged and addressed through the extension of some safeguards and services. Support services should not abruptly end but foresee a transitional period of ‘after-care’, with practitioners trained to deal with youth. This transitional period must begin after the child turns 18 years old and cannot be used to curtail safeguards, care and services for children before they turn 18, as is occurring in some countries.

› Young people should be duly prepared, in particular, they should continue to be provided with timely information about their status and options, in a language and manner they can actually understand, as well as free, quality legal counselling.

› In cases where children have only been granted a temporary residence status, States should ensure that their status enables them to complete any ongoing education or training after they turn 18, and there are clear and accessible options to easily transition into another status. The status should not abruptly end at age 18.

› States should provide avenues for young adults to continue residence, or apply for different residence and work permits on grounds such as length of residence, family and social links, level of integration, educational enrolment, employment, etc. This should go beyond standard work and study permit schemes, which are unattainable for some young migrants who have had limited education, in recognition of their residence and integration in the country and potential vulnerabilities at this time

ANNEX 1 – Major References

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