Save the Children’s response to the “Communication on a Community Return Policy on Illegal Residents”. COM(2002) 564 final

Save the Children is an international children’s rights organisation working in over 100 countries worldwide. We are actively working on EU asylum and immigration policy and legislation to ensure children’s rights are promoted and protected. In this response, we are enclosing our comments on the Communication on a Community Return Policy on Illegal Residents presented by the Commission.

1. GENERAL COMMENTS

1.2 Children who are illegal residents in the EU

Children often constitute a proportion of illegal residents referred to in the Communication on a Community Return Policy. Some of these are unaccompanied (or separated) children, that is children separated from both parents or their previous legal/customary primary caregiver: in some cases they are totally alone while in others they live with extended family members. Separated children may be seeking asylum because of fear of persecution or the lack of protection due to human rights violations, armed conflict or disturbances in their own country; they may be the victims of trafficking for sexual or other exploitation, or they may have travelled to Europe to escape conditions of serious deprivation. Unaccompanied children may be illegal residents because they entered illegally or because their asylum application has been rejected.

Other children residing illegally in Europe live with their parents: they may have entered Europe illegally along with their parents or to be reunited to them, or their parents’ asylum application may have been rejected.

The focus of the Communication includes “legal residents, who have a temporary status or whose removal has been temporarily suspended, […] in particular persons under any form of international protection and which is principally of a temporary nature”.

Among these are included children entered illegally in Europe or whose asylum application has been rejected, who receive, according to the national law of some Member States, a temporary residence permit on humanitarian grounds.

In some Member States this kind of temporary residence permit expires when the child come of age: as a consequence, among the illegal residents are many young people that received a residence permit as a child and have started to integrate (through school, vocational training, work etc.) in the Member State and then, once they reach the age of 18, have their residence permit revoked.

1.2 Children first and foremost: the “best interests of the child”

Save the Children welcomes the reference to the “best interests of the child” principle in the Communication. However we are concerned that there is only one general reference to it in the paragraph on international obligations and human rights, and three limited references and that the principle is not developed in the “Return Action Programme”. Stating this principle in general is not enough to make it effective: it is necessary that the “best interests of the child” principle informs all the specific aspects of return procedures and is integrated into both the Communication and subsequent implementation by Member States.

The Commission has previously recognised in draft Directives that children, particularly unaccompanied children, have very specific needs and rights and that specific clauses are needed in Directives to ensure that these are protected. The EU Resolution on Unaccompanied Minors stated in 1997 that: “recognition of the vulnerable situation of unaccompanied minors in the territory of Member States justifies the laying down of common principles for dealing with such situations” and established “guidelines for the treatment for unaccompanied minors, with regard to matters such as the conditions for their reception, stay and return”.

Children are entitled to special rights and to international protection under a broad range of international and regional instruments.

As stated in the Communication, the United Nations Convention on the Rights of the Child of 1989, that has been ratified by all EU Member States, states that “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” (CRC, art. 3).

According to the Convention on the Rights of the Child, the “best interests” principle applies to all children without discrimination, including foreign children who are illegally residents: “all the rights laid down by the Convention on the Rights of the Child must be applied to all the children present in the State, including […] those who are there illegally”[1].

Therefore the best interests of the child must be a primary consideration in all actions concerning the return of illegally resident children:

• in deciding if a child should be returned to his/her country of origin or stay in the Member State (see: preconditions for return decisions, ending of legal residence, mutual recognition of return decisions etc.);
• in enforcing return decisions (see: detention pending removal, removal etc.);
• in planning return programmes;
• in negotiating return-related agreements with third-countries, etc.

2. DETAILED COMMENTS ON “RETURN ACTION PROGRAMME”

The following comments, follow the structure of the Communication, the specific sections of the “Return Action Programme”, mainly referring to the 1989 UN Convention on the Rights of the Child, the 1951 UN Convention relating to the Status of Refugees, the 1997 EU Resolution on unaccompanied minors who are nationals of third countries and the 1997 UNHCR Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum. We also refer to the “Statement of Good Practice” developed by the Separated Children in Europe Programme, the joint programme of Save the Children and UNHCR on separated children in Europe.

2.2. Operational co-operation among Member States:

2.2.1. Definitions

It is important that common definitions of “child” and of “unaccompanied child” are provided:

· Child: Every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier (as defined by the CRC ratified by all Member States).[2]

· Unaccompanied child: Child that is outside his/her country of origin and separated from both parents or his/her previous legal or customary primary care giver, either if he/she is totally alone or lives with extended family members.[3]

2.2.2 Statistics and information exchange:

It is important that, in collecting data on return, figures are broken down according to the age of the persons returned, i.e. children below 18 years / adults above 18 years. The statistics for children, should include the status of the child, i.e. whether they are unaccompanied or accompanied.

2.2.3. Networking authorities:

It would be useful that the web-based Information and Coodination Network includes information about governmental, intergovernmental and non-governmental agencies and organisations undertaking family tracing and assessment of conditions in the country of origin aimed at assessing if return is in the best interests of the unaccompanied child.

In some Member States governmental authorities have specific agreements with such organisations, while in others there are no such agreements. Moreover, these kind of agreements often concern family tracing only in countries where most of the separated children present in that Member State come from, while authorities are not able to do family tracing in other countries. Networking authorities at a EU level would therefore facilitate family tracing and assessment of conditions in the country of origin in a wider number of cases.

2.2.4. Best practices and guidelines:

It is important that in developing the Handbook of best practices and guidelines on return, specific attention is paid to return of children.

Practices adopted by Member States on return of children should be valued as “best practices” not on the basis of a “quantitative” evaluation and of the effectiveness and efficiency in returning the highest number of children, but most of all on a “qualitative” evaluation based on the principle of the “best interests of the child”: the best practices on return of children are those that respect at the highest level the “best interests of the child” and the other principles stated by the Convention on the Rights of the Child.

There are great differences among Member States as far as return of children is concerned. Therefore it is particularly important to identify best practices and to develop guidelines on the return of children. Some Member States have developed good practices: the child is returned only if return is considered to be in his/her best interests; there are schemes for family tracing and assessment of conditions in the country of origin; the child is assisted and protected during return etc. However, other Member States return children on the basis of their illegal status, without taking into account the “best interests of the child”, without assessing if return is safe and if the child will be cared for in the country of origin, without being accompanied during return etc. There is also an urgent need for a return and admissions policy to address the problem of trafficked children for the purposes of economic or sexual exploitation who are an extremely vulnerable group. Many of these children, particularly girls are fearful of the shame that will face them when they are re-united with their families and are therefore frightened to return home immediately

Save the Children, having developed research on this issue[4] and being in contact with NGOs dealing with separated children in all Member States and also in Central and Eastern Europe through the Separated Children in Europe Programme, would be pleased to assist in identifying best practices and in developing guidelines on return of children.

2.2.5. Joint training:

It is important that all professionals working on return of children (social workers, immigration police staff, staff of agencies undertaking family tracing etc.) receive training on the complex issues involved, such as listening to and considering the child’s views about return, facilitating the contact between the child and his/her family, organising the return in a child-appropriate manner, planning and carrying out a return project involving the child and his/her family etc.

2.2.6. Better identification and documentation:

Often illegally resident children do not have documents or have false documents that wrongly give their age as over 18: the UN Convention relating to the Status of Refugees recognises that asylum seekers must sometimes travel with false documents in order to flee dangerous situations (Art. 31); for children the problem can be compounded if they are not entitled to passports until they reach the age of majority, or their birth has not been registered.

If children are incorrectly identified as adults, the implications in terms of their risk of unsafe removal, detention, care etc. will lead to the denial of their rights under the Convention on the Rights of the Child.

UNHCR Guidelines on Unaccompanied Children Seeking Asylum state that “The child should be given the benefit of the doubt if the exact age is uncertain” (para. 5.11). There should therefore be a presumption that someone claiming to be under 18 years of age, will be treated as such.

If an age assessment is thought to be necessary – for example because the child arrives with a passport giving his/her age, wrongly, as over 18 – it should be carried out by an independent paediatrician with appropriate expertise and familiarity with the child’s ethnic/cultural background and should never be forced or culturally inappropriate. Moreover, it should be taken into account that age assessment is not an exact science and that a considerable margin of error (up to 24 months) can occur.

2.2.9. Joint return operations:

According to the “best interests of the child” principle, return of children should be carried out in a child-appropriate manner and must not traumatise the child.

Returns on charter flights full of persons that are forcibly returned and where acts of rage, violence and desperation are very frequent, can easily traumatise a child, with negative effects on his/her psychological development: therefore children should never be returned this way.

2.3 Common minimum standards to ensure efficient return policies:

2.3.1. Mutual recognition of return decisions:

The Communication states that “The mutual recognition of expulsion decisions regarding persons who have applied for asylum requires special attention, for Member States interpret the Geneva Convention in different ways and also have different grounds for subsidiary protection.”

Until member states approve universally high standards which fully respect and implement the Convention on the Rights of the Child in this area, a similar safe-guard should be provided for the mutual recognition of return decisions regarding children, because Member States have different norms about the return of children.

As noted above, some Member States return children just as they return adults, without family tracing, assessment of the conditions in the country of origin and evaluation of the best interests of the child. For example, recently one Member State returned a separated child of only 5 years old to Congo, where there was nobody to take care of her and where conditions were unsafe (her mother had been recognised as refugee). Other Member States recognise that the return of a child would violate the child’s right to protection and of the “best interests of the child” principle provided by the UN Convention on the Rights of the Child.

It is important that a future Directive establishing a binding framework for mutual recognition of return decisions provides that Member States must recognise a return decision issued by another Member State regarding a child only if it does not entail a violation of the Member State’s international obligations, and in particular of the UN Convention on the Rights of the Child.

2.3.2 Removal:

We are disappointed that the Communication refers to special guarantees for children only relating to the assessment of illness claims by the person that should be removed.

It is important that Minimum standards on removal provide much broader and more detailed guaranties for children, in particular (but not only) for unaccompanied children.

Return[5] procedures should respect the principles stated in the UN Convention of the Rights of the Child, and in particular the “best interests of the child” principle (art. 3), the right to protection from neglect or negligent treatment (art. 19), the right to special protection and assistance if the child is deprived of his/her family (art. 20 and 22), the right not to be separated from his or her parents against their will (art. 9).

According to these principles, minimum standards for children's return should include that:

• Returns should always be carried out in a child-appropriate manner and must not be traumatising for the child. Coercive measures should not be used.
• Unaccompanied children must be accompanied appropriately during the return and the authorities should never hand children over to the border authorities of the country of origin or of a third country without knowing how the child will be accommodated and cared for.
• Children that are returned with their parents or other relatives, must not be separated from them during the return procedures. We are concerned about the reference in the Communication that the Minimum standards on removal “should deal with the conditions under which a family can be separated during the removal procedure”. In our experience it is very unlikely to be in the best interests of the child to be separated from his/her family.

2.3.3. Pre-conditions for expulsion decisions:

The Communication states that “The expulsion of refugees as well as other persons under other forms of international protection requires special attention, for they can only be removed in accordance with international obligations such as the 1951 Geneva Convention and the European Convention on Human Rights.”

Children very rarely achieve refugee recognition under the 1951 Geneva Convention but still need international protection. It is important that a future Directive on Minimum Standards for Return Procedures states that children can only be removed in accordance with international obligations under the 1989 UN Convention on the Rights of the Child and provides specific norms about pre-conditions for return of children.

a) According to the “best interests of the child” principle provided by the UN Convention on the Rights of the Child, a child should not be returned simply because he/she is illegally resident, but only if it is in his/her best interests (CRC, art. 3).

Moreover, the UN Convention on the Rights of the Child provides that “to the child who is capable of forming his or her own views [must be assured] 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.” (CRC, art. 12).

It is important that a future Directive on Minimum Standards for Return Procedures provides that Member States should:

· decide whether a child must be returned to his/her country of origin or stay in the host country on the basis of what is considered to be in the best interests of the child, given his/her individual situation;

· provide that children have the right to be heard in proceedings concerning return decisions and that child’s views about return should be given due weight, in accordance with the age and maturity of the child;

· provide a judicial remedy, with suspensive effect, against return decisions regarding children;

· provide, if return is not in the best interests of the child, a durable solution in the host country.

b) Regarding return of unaccompanied children, some important principles have already been agreed at EU level in the 1997 EU Resolution on Unaccompanied Minors states that:

• “3. Member States should, with a view to reunification, endeavour to trace the members of the family of an unaccompanied minor as soon as possible, or to identify the place of residence of the members of the family […]. Member States should provide as soon as possible for the necessary representation of the minor by: (a) legal guardianship, or (b) representation by a (national) organization which is responsible for the care and well-being of the minor, or (c) other appropriate representation.” (EU Resolution on Unaccompanied Minors, art. 3)

• “1. Where a minor is not allowed to prolong his stay in a Member State, the Member State concerned may only return the minor to his country of origin or a third country prepared to accept him, if on arrival therein – depending on his needs in the light of age and degree of independence – adequate reception and care are available. This can be provided by parents or other adults who take care of the child, or by governmental or non-governmental bodies. 2. As long as return under these conditions is not possible, Member States should in principle make it possible for the minor to remain in their territory.” (EU Resolution on Unaccompanied Minors, art. 5)

It is important that the minimum standards and safeguards identified in the EU Resolution are incorporated in a future Directive on Minimum Standards for Return Procedures and that they are further strengthened.

Save the Children and UNHCR in “Separated Children in Europe Programme – Statement of Good Practice” have outlined key principles that should govern return, drawing mainly from the UN Convention on the Rights of the Child[6] and other binding and non-binding instruments[7]:

• The best way for returns to be carried out is on a voluntary basis. Children should be fully consulted at all stages of the process.
• Before a separated child can be returned to a country of origin the following must be in place:

- it is safe to return the child to his or her home country;

- the child’s carer and guardian/adviser in the host country – that should be appointed as soon as a separated child is identified, to advise and protect him/her – agree it is in the child’s best interests to return;

- a careful assessment is made of the family situation in the home country and whether it is safe to return a child to that country. It will be necessary to investigate the ability of the child’s family (parents or other family members) to provide appropriate care. In the absence of parents or other family members, the suitability of child-care agencies in the country of origin should be investigated;

- this investigation should be carried out by a professional and independent organisation (that is different from the body or person(s) making the initial determination) or person(s) and should be objective, non-political and take into consideration the best interests of the child in each case;

- the child’s parents, relatives, other adult care-taker or government child-care agency agree to provide immediate and long-term care upon the child’s arrival in the country of origin;

- the child is fully informed at all stages and is provided with appropriate counselling and support;

- prior to the return contact between the child and his or her family is facilitated.

• A special attention should be paid to children that have been trafficked: they are often refused by their family and community, especially in case of trafficking for sexual exploitation, and they are frequently immediately retrafficked.

c) Regarding children accompanied by one or both parents, if parents are illegally resident and must be returned, generally the child will be returned along with the parents. Nevertheless, as the “best interests of the child” must be a primary consideration, a future Directive on Minimum Standards for Return Procedures should provide that:

• The decision on return of the child must not be automatic but should be based on the assessment of what is in the child’s best interests for example, Member States may issue a residence permit to the illegally resident parent(s) if it is clearly in the best interests of the child to remain in the host country, for example for grave health reasons (e.g. Italian law provides that a residence permit can be issued to the parent, for serious reasons related to the psychological or physical development of the child).

d) Finally, according to the right not to be separated from the parents provided by the CRC[8], illegally resident children accompanied by one or both parent(s) legally residing in a Member State should never be returned against the will of the parent(s), even if one of the parents or other relatives lives in the country of origin, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that separation from the parents(s) and return are necessary for the best interests of the child. In our view this would only be likely to occur in very exceptional circumstances such as where there has been abuse or exploitation.

These children should be treated, according to the “best interests of the child” and “non discrimination” principles provided by the Convention on the Rights of the Child, not at a disadvantage compared to children entered legally to be reunited to their family, in matters such as issuing of a residence permit, etc.

2.3.4. Ending of legal residence:

Another reason that children are returned is that the reach their 18^th birthday and their permit to stay expires. Save the Children believes that young people who arrive on the territory of a European state as separated children and have reached the age of eighteen should be treated in a generous manner and full regard should be given to their vulnerable status. It is important that states should not provide norms that make it impossible for these young people to remain legally. These young people should be allowed to renew their residence permit when they come of age if they satisfy certain conditions proving their integration (eg if they are working or studying) or if they are in a particularly vulnerable situation.

2.3.5. Detention pending removal:

Save the Children welcomes the reference to unaccompanied children and persons under the age of 18 among the groups of persons who should generally not or only under specific conditions be detained.

But we think that the future Minimum Standards at EU level defining the preconditions for detention should provide more specific norms to fully guarantee the respect of children’s rights, according to the Convention on the Rights of the Child.

Besides the principle of the “best interests of the child”, the Convention states that the detention of a child must “be used only as a measure of last resort and for the shortest appropriate period of time” and that every child deprived of liberty must be treated in a manner which takes into account the needs of persons of his or her age and should be separated from adults unless it is considered in the child's best interest not to do so (CRC, art. 37).

The Minimum Standards on detention should therefore provide that:

• Unaccompanied children should never be detained for reasons relating to their immigration status.
• Children accompanied by parents or other adults that are their legal/customary primary care-givers, in case the adult is detained pending return, can be detained only if this is in the best interests of the child in order not to be separated from parents or other care-givers.
• In case of detention of children, time limits must be particularly strict and the specific needs of children must be taken into account.

2.3.6. Proof of exit and re-entry

When a person is returned as a child, a subsequent future visa application in order to re-enter the EU should not be refused only upon the fact that he/she was previously returned, even if return was not carried out voluntarily but forcibly.

2.4. Elements for integrated return programmes

On the outlines provided by the Communication about return programmes, Save the Children wishes to stress that:

• Return projects for the reintegration of returned children should provide support for school enrolling, vocational or other training, assistance for finding a job or for starting up a business.
• Return projects should be planned along with the child, starting when he/she is in the Member State, and with his/her family, starting from the contacts made by the organisation responsible for family tracing.
• Children should have the chance to be provided, in the host country, with education and professional training that would be useful to them on return to their home country.
• If possible contact with the child and his or her parents or carers should be maintained after the return journey to monitor the child’s progress and to assess the sustainability of return.

· Return programmes should be integrated in wider national and EU Development Cooperation policy: only a serious and effective Development Cooperation policy in countries of origin, with a special attention to children’s rights, can make returns sustainable.

As return programmes exist only in some countries, and as some interesting schemes have been developed in some Member States, we think that exchange of information and best practices at a EU level would be very useful.

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[1] UNICEF, Implementation Handbook for the Convention on the Rights of the Child, Geneva, 1998, p. 26

[2] Convention on the Rights of the Child, art. 1

[3] Convention on the Rights of the Child, art. 22; Hague Convention for the Protection of Children 1996, art. 6; EU Resolution on Unaccompanied Minors, art. 1(1); UNHCR Guidelines para 3.1.

[4] See: Separated Children in Europe Programme, Separated Children Seeking Asylum in Europe: A Programme for Action, Stockholm, 2000; Save the Children, Separated children, Exile and Home-Country Links: The example of Somali Children in the Nordic Countries, Copenhagen, 2002.

[5] We prefer to use the term “return” instead of “removal” because the latter refers to sending away persons that are not wanted, rather than returning persons (in this case children) for their best interests and involving them in the process.

[6] Among CRC articles: “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.” (CRC, art. 20); “States Parties shall provide, as they consider appropriate, co-operation in any efforts by the United Nations and other competent intergovernmental organizations or non-governmental organizations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.” (CRC, art. 22)

[7] UN Convention relating to the Status of Refugees, UNHCR Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum, EU Resolution on Unaccompanied Minors etc.

[8] “States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.” (CRC, art. 9)