Child or Migrant?

September 25, 2017

As of the 3rd of August 2017, of the estimated 2,350 unaccompanied children currently in Greece, only half of them are in shelters. The rest are left on waiting lists and live in open sites, overcrowded police stations, reception and identification centers, and temporary accommodation sites.[1] UNICEF states that of the 28,223 children that arrived on the Italian shores during 2016, 92% were unaccompanied children.[2] Amnesty International reported the use of detention, beatings, electric (shock) batons, and inhumane and degrading treatment of migrant children to obtain their fingerprints in Italian hotspots. [3]

All European countries are signatory to the Convention on the Rights of the Child (CRC) that establishes the “best interest of the child” (Art. 3) along with absolute “non-discrimination” (Art. 2). While these principles should always be taken into consideration by all legislative, administrative and judicial bodies, they do, however, leave space for interpretation and often misinterpretation. The EU lacks a comprehensive directive establishing minimum standards for procedures of first encounter and the identification and shelter of unaccompanied minors. A first attempt to establish order in the babel of different approaches was made in 2010 with a non-binding Action Plan establishing a few general principles of protection – though, these failed to change the situation.[4] In 2011 a directive defined unaccompanied children (UAC) in the same way as the CRC but, while establishing the need for a legal representative to assist minors seeking asylum, the same did not happen for minors who are considered economic migrants.[5]

The reason for the lack of a comprehensive legislation at the EU level concerning all unaccompanied minors stems from the contradiction between the rights of the child on the one hand and the limited rights of non-EU citizens on the other.[6] The situation seems logically quite easy to solve: a child is a child before being a migrant. However, politically, the response has not been that clear. A comparative study on different European countries shows three elements of comparison to determine the rise of discriminative and coercive practices: the detention of children, the suspiciousness of authorities towards UACs and the denial of the status of child or of being unaccompanied.[7] At the time of the research (2011-2013), this trend was explained mainly through the economic crisis and the limited budgets assigned to social services in border countries that were hit more severely by the recession. In more recent years, security concerns have been channeled by nationalist parties to exacerbate the criminalization of migration and normalize, through mediatic and political scapegoating, violations of the most basic human rights of migrants, even of children.

Of the various violations of rights that unaccompanied children undergo, the denial of being underage or without an adult guardian are particularly difficult to prove and eradicate since it depends on the practices of the specific coastal guard or police units. On the contrary, arbitrary and prolonged detention is a flagrant violation and a symbol of the level of dehumanization of migrants directed by panic-driven and criminalizing policies for which states can be made accountable.[8] In most cases, authorities define the detention of unaccompanied children to be in their “best interest” and aim at protecting them from trafficking. However, it has been clearly determined that this is not the case. Reports concerning the “hotspots approach”,[9] endorsed in 2015 to try to alleviate the migration pressure in Italy and Greece, denounced the transformation of identification centres into “detention centre[s] in disguise” as the UNHCR stated in disapproval.[10] Human Rights Watch denounces that the detention of unaccompanied minors in Greece violates the CRC under three aspects: the arbitrary detention due to lack of space in appropriate structures, the prolonged duration and inhumane living conditions, and the violations of the right to a legal guardian, healthcare and education. [11] For some authors the lack of an efficient protection system and inherent suspicion fuel,[12] rather than constrain, the tendency of children to flee and hide from authorities. A child who has no faith in the national authorities and has been mistreated by police or coastal guards will prefer turning to illegal networks to get to his destination, putting himself in even further danger of trafficking.

Member States have in some cases made a few steps in the right direction, as, for example, the recent Italian reform on the protection of UACs that determines, among others, basic legal guarantees in the determination of age and of suitable members of the family for guardianship.[13] However, there is a need to harmonize minimum European standards for the treatment of unaccompanied children and establish a monitoring system. The standards should define a functioning procedure for age determination and aim for the total abolition of detention of unaccompanied minors through the institution of specific funds to create safe shelters.  Unaccompanied children must have access to health services, education, and have the protection of a guardian as soon as they are found in member state territory, whatever their final administrative status may be, in respect of both their basic rights as children and their dignity as human beings.

 

References

[1] EKKA, National Centre for Social Solidarity, Situation Update Unaccompanied Children in Greece, 3 August 2017, http://reliefweb.int/sites/reliefweb.int/files/resources/EKKA%20dashboard%203-8-2017.pdf.

[2] UNICEF, “Minori stranieri non accompagnati, nel 2016 raddoppiano gli arrivi in Italia” [Unaccompanied foreign children, in 2016 the numbers have doubled in Italy], 13 January 2017 https://www.unicef.it/doc/7305/minori-stranieri-non-accompagnati-arrivi-raddoppiati-nel-2016.htm.

[3] Amnesty International Report, “Hotspot Italia, come le politiche dell’Unione Europea portano alla violazione di diritti di rifugiati e migranti” [Hotspots Italy, how EU politics have led to the violation of refugee and migrant rights], https://www.amnesty.org/en/documents/eur30/5004/2016/it/.

[4] Communication form the Commission to the European Parliament and the Council Action Plan on Unaccompanied Minors (2010 – 2014), SEC (2010)534.

[5] Directive 2011/95/UE, “On standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted”, 13 December 2011.

[6] Daniel S. Hernández, “Analyse d’une catégorie juridique récente : le mineur étranger non accompagné, séparé ou isolé”, [Analysis of a recent juridical category : the unaccompanied or separated or isolated  foreign child], Revue européenne des migrations internationales, 30. 1 (2014): 17-34.

[7] PUCAFREU Project, “Unaccompanied Children Lacking Protection in Europe, Final Comparative Report”, Migrinter-CNRS 2013, http://migrinter.labo.univ-poitiers.fr/programmes-de-recherche/pucafreu/.

[8] Among others: Beijing rules, rule 13, 19; CRC art 37; ECJ (2011), “Hassen El Dridi, alias Soufi Karim”, Case C-61/11 PPU, 28 April 2011.

[9] ECRE, “The implementation of the Hotspots in Italy and Greece”, ECRE Report, 5 December 2016, https://www.ecre.org/wp-content/uploads/2016/12/HOTSPOTS-Report-5.12.2016..pdf.

[10] Le Monde, “Pour le HCR, les ‘hotspots’ sont devenus des ‘centres de détention’” [For the High Commisioner of Refugees, hotspots have become detention centers], 22 March 2016, http://www.lemonde.fr/europe/article/2016/03/22/pour-le-hcr-les-hotspots-sont-devenus-des-centres-de-detention_4887931_3214.html.

[11] Human Rights Watch Report, “Why are you keeping me here? Unaccompanied children detained in Greece”, 8 September 2016 https://www.hrw.org/report/2016/09/08/why-are-you-keeping-me-here/unaccompanied-children-detained-greece.

[12] Sigona, Allsopp, “Mind the gap: why are unaccompanied children disappearing in their thousands?” openDemocracy, February 2016.

[13] Law 7 April 2017 n. 47 (GU n.93).

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