Save the Children Comments on The European Commission’s “P“Proposal
for a Council Directive laying down minimum standards for the qualification and
status of third country nationals and stateless persons as refugees, in
accordance with the 1951 Convention relating to the status of refugees and the
1967 protocol, or as persons who otherwise need international protection” (Brussels 12 September 2001,
COM (2001) 510 final 2002/0207 (CNS))
Further information available from: -
Diana Sutton – European officer
Save the Children – European officer
39 Rue Montoyer
B 1000
Brussels
Belgium
Tel : + 32 2 512 7851
Fax + 32 2 513 4903
E mail savechildbru@skynet.be
Introduction
Save the
Children is an international child rights NGO working to promote and protect
the rights of the child. We
Save the Children welcomes
the opportunity to comment on the “Proposal for a Council Directive
laying down minimum standards for the qualification and status of third country
nationals and stateless persons as refugees, in accordance with the 1951
Convention relating to the status of refugees and the 1967 protocol, or as
persons who otherwise need international protection”. Our comments are specifically on the
articles that directly affect children (both accompanied or unaccompanied.)
Traditionally
children have been invisible in international refugee law, despite the fact
that Sspecific measures are needed to protect
refugee and asylum seeking children and to realise their rights. This is because there is a There are a large proportion of
children in refugee populations and many children become separated from their
parents or normal caregivers as a result of the circumstances in which refugees
find themselves. Save the
Children’s particular concern is for separated children (i.e.
unaccompanied refugee children).
Save the Children warmly welcomes the extent to which
the rights of asylum
seeking refugee children have been reflected
in the draft Directive. Once implemented, the proposed measures couldwill make a
significant contribution to realising the rights of asylum seeking and refugee children whether
accompanied by their family or separated from them. In
particular we welcome the recognition of child specific forms of persecution
and the Article on unaccompanied minors, and the recognition and integration of the key Article of the Convention
on the Rights of the Child, the “best interests of the child” principle into
the draft Directive.
The following comments and proposed amendments should
therefore be seen as reflecting Save the Children’s view as to how the
Directive should might be further
improved in the interests of children.
Article 2 Definitions
(k) (ii)
The Directive as currently drafted is unclear
on the issue of dependent children, since it states that children have to be unmarried and dependent in order
to qualify as family members. We believe the Directive should be amended so that it is clear thatThere
should not be a
requirement for unmarried
children under 18 do
not have to
be dependent on their parents in order for them to be considered as family
members for reasons of determining refugee status.
However the criteria of dependency should be maintained for those over
18.
Justification
On this, as with other comments, Save the Children
bases its arguments on tThe provisions of he UN Convention on the
Rights of the Child (CRC), ratified by all member states of the European Union clearly defines the age of the
child as 18. .
Article 1 of the CRC states “..a child means every
human being below the age of eighteen years, unless under the law applicable to
the child, majority is attained earlier.” Therefore it is logical to use the accepted definition
of a child and not to
introduce an
additional
requirement of dependency in order for a child to be included as a family
member. Where a child is over 18 and dependent, it is important that they are included in the definition of family members.
issue of dependency, for those children
who are not married, is therefore a matter for judgement by the family not
state authorities.
(m)
We welcome theis definition of unaccompanied minors used in the Directive and
in particular the recognition that children can become “unaccompanied
once they have entered the territory of the Member States”.
Children can arrive in European member states without the protection of their parents or legal guardian. Sometimes children appear to be accompanied by other adults when they arrive, but in practice the accompanying adults are not necessarily able or suitable to assume responsibility for their care. The Directive therefore tackles this by explicitly recognising this.
Article 7 Assessment of applications for international protection
Article 11 The nature of persecution
We make on comments on these two articles together.
We welcome the first legal reference in a European Union
text to child specific forms of persecution and the explanation given in the
Commentary on the Articles. As recognised in the Commentary, children manifest
their fears in different ways to adults yet, all too often, this is not
recognised in current practice in the asylum systems of Member States.
In order
to strengthen the text Wwe therefore propose the following
amendment to Article 7, and urgefurther
propose that detailed guidance on child specific forms of persecution isbe included in
future interpretive guidance.
Proposed new clause to Article 7:
(5) that a child’s testimony will be influenced by
their emotional and psychological maturity as well as by the trauma of the
persecutory experience. This may influence the
child’s ability to articulate their claim for asylum, and therefore
that specially trained persons with the appropriate knowledge of the
psychological, emotional and physical development and behaviour of children
conduct the interview.
We also propose the following addition to Article 11 to bring the Directive in line with the Optional Protocol to the CRC on the involvement of children in armed conflict:
(d) (iii) where a child has been forcibly conscripted or required to take a direct part in hostilities
Justification
In the
Convention on the Rights of the Child, Cchildren are recognised as
individual subjects in their own right and their best interests areshould be in at the foreground of all
decision making. However yet currently they
rarely receive protection under the 1951 Convention and 1967 protocol. It is therefore welcome that in this Directive, child
specific forms of persecution are explicitly recognised for the first time.
As stated in the Commentary to the Directive, children experience forms of persecution which
are specific to their status as a child, in particular recruitment into armies
as child soldiers and harmful and exploitative child labour. Recruitment of children into armed forces, highlighted in the Machel
Report (1996), has
now been recognised in international law in the Optional Protocol to the Convention on the
Rights of the Child on the recruitment of children into armies. Another area in
which children are persecuted is child labour, whether through enslavement for
reasons of sexual exploitation or for other purposes. This has also been recognised in
international law in
the ILO Convention
182 on the Worst
Forms of Child Labour Convention.
Secondly children manifest their fears in
different ways to adults yet, all too often, this is not recognised in current
practice in the asylum systems of Member States, nor is it recognised in
existing legal refugee instruments.
Save the Children believes that there is no
justifiable reason why children’s evidence should not be believed[1] and therefore
hopes to see an improvement in the current recognition rate[2] for children.
Article 12 of the CRC gives the children the right to express their views on
issues affecting them, and to have those views given due weight in judicial and
administrative proceedings
.
WWhen considering a child’s claim it
should be understood
that it is possible for a child to make a legitimate claim for
asylum on the grounds of persecution as set out in the 1951 Refugee Convention, however in practice this is rarely the case. A child may be persecuted on the grounds of her/his
race, religion or nationality just as much as an adult. Children may be
persecuted because of the political opinion of their family or in their own
right as a teenager. The child may also have a legitimate claim through the
membership of a particular social group where that group is a family or
community that has experienced persecution.
But
children rarely receive recognition, not only because child specific forms of
persecution (such as
recruitment into armies) have not been recognised until now, but also because children’s evidence is not
always believed and persecution
experienced by a child can differ from that experienced by an adult. Actions which when directed at
adults might be considered mere harassment or interference could amount to
persecution when applied to children because of the child’s heightened sensitivity
and/or dependence.
A child may be
persecuted on the grounds of her/his race, religion or nationality just as much
as an adult. Children may be persecuted because of the political opinion of
their family or in their own right as a teenager. The child may also have a
legitimate claim through the membership of a particular social group where that
group is a family or community that has experienced persecution.
There is no justifiable reason why children’s evidence should not be believed[3] and Save the Children therefore hopes to see an improvement in the current recognition rate[4] for children. Article 12 of the CRC gives the children the right to express their views on issues affecting them, and to have those views given due weight in judicial and administrative proceedings
One example where the persecution of children has
increased in recent years is in their recruitment into armed forces,
highlighted in the Machel Report (1996), and leading to development of the
Optional Protocol mentioned above. Another area in which children are
persecuted is child labour, whether through enslavement for reasons of sexual
exploitation or for other purposes. International concern on this issue is
reflected in the International Labour Organisation’s Worst Forms of Child
Labour Convention 1999.
The interpretation of persecution experienced by a
child can differ from that experienced by an adult. Actions which
when directed at adults might be considered mere harassment or interference
could amount to persecution when applied to children because of the
child’s heightened sensitivity and/or dependence.
For these reasons Save the Children believes this Directive
has particular significance in securing the necessary international protection
for children who are persecuted. .
Article 9 Sources
of harm and protection
We welcome the recognition that persecution can emanate from non-state actors and urge that this provision be retained in the Directive.
Justification
Non-state actors perpetrate the persecution experienced by many children and in many instances states do not take sufficient action to protect children from such persecution. Article 19 of the CRC lays an obligation on states to provide children with such protection. For children one of the most common forms of persecution by non state actors is recruitment into rebel armies as child soldiers.
The Optional Protocol on the involvement of
children in armed conflict and the ILO Convention 182 are also important in
this regard.
Article 10 The internal protection alternative
As we
argue earlier, decisions taken for children should have their best interests as
the first consideration. Therefore each case should be examined on an
individual basis before any return is contemplated, and in particular where that
is not to a family or community which can provide the appropriate protection
for the child.
Save the Children does not believes that there would be very few, if any
circumstances
where internal protection this provision is in the best
interests of the child children separated
from their parents or normal/customary caregiver. We would be concerned that
children so returned could be further exploited by those who had persecuted
them originally, causing them to flee from their family and community.
As we argue earlier, decisions taken for children
should have their best interests as the first consideration. Therefore each
case should be examined on an individual basis before any return is
contemplated, and in particular where that is not to a family or community
which can provide the appropriate protection for the child.
Article 18 Content of international protection
We welcome this provision as it would give equal protection both to those who are recognised as refugees as well as those eligible for subsidiary protection. We again welcome the specific reference to children and in particular those who are unaccompanied.
Articles 26 and 27 Social Welfare and Health and Psychological care
We welcome the specific reference to the rehabilitative
needs of children in Article 27 and wish to see ould argue for a
reference to the specific social welfare needs of separated children
(unaccompanied children) in Article 26.
Justification
The Statement of Good Practice of the Separated Children in Europe Programme argues for a twin-track approach when assessing a child’s case. By this we mean a thorough assessment of their health, educational and social welfare needs alongside an assessment of their asylum claim. States should respond to the needs arising through this process without this prejudicing or being confused with the child’s asylum claim.
Article 28 Unaccompanied minors
We welcome the provisions of this article and suggest two additional clauses as follows:
(7) An unaccompanied minor shall have the right to fully participate in the process in accordance with his/her age and maturity and receive all relevant information in his or her case.
(8) An unaccompanied minor should never be detained for reason of his/her immigration claim or status.
Justification
(7) Article 12 of the UN Convention on the Rights of the Child states the child’s right to express an opinion, and to have that opinion taken into account in any matter of procedure affecting the child, and in accordance with her/his age and maturity.
(8) Save the Children believes that unaccompanied children should never be detained for reasons relating to their immigration status. This includes detention at borders, in detention centres or international zones or in police cells or in prison. Inclusion of this clause would be in line with Article 2(3) of the Council resolution of 26 June 1997 on “unaccompanied minors who are nationals of third countries” which calls for children to be provided with “accommodation suitable for their age”. A number of other international instruments are also relevant on this point. Article 37 of the UN Convention on the Rights of the Child, Articles 7 and 9 of the International Covenant on Civil and Political Rights 1996 and Articles 3 and 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.
Article 34 Staff and resources
We welcome the provisions of this Article specifically as they relate to children and unaccompanied minors.