In this period politically, economically and diplomatically very difficult, NGOs keep sounding the alarm on the inaction of governments regarding unaccompanied migrant minors. Médecins sans frontières set a camp of unaccompanied minors in the centre of Paris to denounce the lack of accommodations and facilities available for them. The NGO is urging the French Government and the local authorities to take action.(1) In April 2020, the Human Rights Watch led a #FreeTheKids campaign to exhort the release by the Greek Government of the unaccompanied minors detained in the country. (2)
Unaccompanied minors are considered by Article 21 of the Reception Directive (2013/33/EU) (3) as vulnerable migrants meaning they are granted more guarantees than other migrants due to their conditions. However, as the situation of migrants became precarious, more individuals claim they were unaccompanied minors. This practice led to a more suspicious apprehension of the unaccompanied minors by the authorities. Whereas every measures or practice taken towards a minor should be in due consideration to his best interest according to the Convention of the Rights of the Child of New York, their condition in Europe is more and more fragile. This article will analyse how their condition has evolved in different European Member States and if the difficulty they must deal with has been or will be taken into consideration by EU law.
At the Member States level.
Taking care of unaccompanied minors means to ensure they have access to suitable and safe housing, to education, to healthcare, that they are not subjected to inhuman and degrading treatment.(4) This section will address the main concerns during this public health crisis: the detention and the health care of migrants children.
Unaccompanied minors in detention.
Article 11 paragraph 2 of the Reception Directive foresees: “Minors shall be detained only as a measure of last resort and after it having been established that other less coercive alternative measures cannot be applied effectively. Such detention shall be for the shortest period of time and all efforts shall be made to release the detained minors”. (5)
However, this provision is not applied by authorities of the Member States as it should. Albeit reliable statistics are hard to find, the UN Global Study on Children Deprived of Liberty observed that there had been an increased of unaccompanied minors detained in some of the Member States such as France, Greece, Malta, Poland and Slovenia(6). Whereas in France and Slovenia, the global trend is to keep unaccompanied minors for more than 48 hours, in Malta and Greece, the detention can last for months.(7)
In Greece, the European Agency for Fundamental Rights (hereafter FRA) reports that before they are transferred to a specialised accommodation facility, unaccompanied minors are kept “in police cells and immigration detention facilities”.(8) The European Court on Human Rights (hereafter ECtHR) has condemned this practice on multiple occasions.(9) For instance, in the case law SH.D. and others v. Greece, Austria, Croatia, Hungary, Macedonia, Serbia and Slovenia (App n°14165/16), the detention of unaccompanied children was found in violation of Article 5 (1) (f) of the European Convention on Human rights. This provision foresees the possibility to detain a person “to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition”. The ECtHR also held that the detention conditions were inhuman and degrading and thus violated Article 3 of the Convention (Prohibition of torture).
Furthermore, in the case where there is no other option than detention, the third limb of paragraph 2 of Article 11 of the Reception Directive clarifies that minors should be kept separate from other migrants. (10) However, the Maltese authorities place unaccompanied children alongside with the others newly arrived migrants in the Safi barracks which became overcrowded and resulted in severe hygiene and other issues. (11)
In 2017, the Commission confirmed: “detention should be used, in line with EU law, exclusively in exceptional circumstances, where strictly necessary and only as a last resort, for the shortest time possible, and never in prison accommodation”.(12) Nevertheless, for now, no change has been noticed. With COVID-19, the situation worsened: « keeping children locked up in filthy police cells was always wrong, but now it also exposes them to the risk of COVID-19 infection”. (13)
Unaccompanied minors and COVID-19.
During this period of COVID, access to healthcare is all the more so as necessary. Article 19 paragraph 2 of the Reception Directive provides: “Member States shall provide necessary medical or other assistance to applicants who have special reception needs, including appropriate mental health care where needed”(14). It must be borne in mind that the COVID-19 pandemic influences both the physical and the mental health of the unaccompanied migrant minors.
Physical health
Unaccompanied minors are at higher risk of contracting the virus due to their living conditions. Whether they are in detention centres, overcrowded camps or reception centres, the lack of means and respect or prevention measures endangers greatly unaccompanied foreign minors. Furthermore, access to healthcare can be much more difficult.
Albertine Baauw, a paediatrician specialised on the health of migrants and refugee, raises several concerns which existed before the sanitary crisis as a preliminary point in the webinar “Health of Refugee and Migrant Children and Unaccompanied Minors”. The care of unaccompanied minors suffers from the lack of medical background at the disposal of practicians and the lack of continuity of care which can imply the loss of information and which can entail the feeling of distrust towards practicians.(15) These inherent issues, combined with the overwhelmingly fast and deadly propagation of the COVID-19, rendered the caring for unaccompanied migrants minors extremely difficult. The lack of hygiene, medical services and psychosocial support in the police cells and detention facilities in Greece make the lives of unaccompanied minors unbearable.
Furthermore, the instability of their condition can prove to be an impediment to trust the State, which is crucial in a time of a crisis. For instance, 100 unaccompanied minors among 1200 migrants lived in the jungle of Calais, which is dismantled every morning.(16) Not only these expulsions without alternative accommodation are contrary to human rights (17), but they also increase the lack of trust—if not—the distrust that migrants have towards public authority. Ketil Eide, professor at the University of South-Eastern Norway studies the psychosocial work regarding child welfare in situations of migration. He reveals that trust is something nationals take for granted: it pre-exists every social relation. Whereas, for migrants — especially for unaccompanied minors — it is something which cannot be presumed and which has to be built.(18) Interventions from the State to help unaccompanied minors does not necessarily result in trust. According to professor Eide, trust can only be developed throughout the time and thanks to the work of competent and qualified authorities which should have the best interest of the children at heart. (19) As such, good practices are essential to ensure the best interest of the migrant child.
Mental health
Already in precarious situations and often dealing with traumas, unaccompanied minors can feel more abandoned than before. Indeed, the lock-down exacerbates loneliness and mental health issues. Health professionals reveal that 85 % of people detained (parents and minors) are affected by psychological difficulties. (20) More specifically, children suffer from depression, anxiety, lack of sleep, eating difficulties and somatic, emotional and behavioural disorder.(21) And these ramifications can occur even in centres adapted to children and for a short amount of time.(22) Unaccompanied migrant minors who are either in detention centres, or in refugee camps during the pandemic are often in a fragile state psychologically. Greece has prolonged the period of lock-down for refugees. As such refugee camps became a mean of “soft-detention”.(23) Not knowing when they will be released increases the feeling of abandonment, invisibility and distrust of unaccompanied minor.
The lack of trust, in addition to the lack of proper housing and the diminution of humanitarian aid caused by the lock-down, increases the potential mental health issue and correlates with trauma. Some organisations have taken measures during the lock-down to help unaccompanied minors. For instance, Piuculture, an Italian online intercultural magazine, organised a workshop during the lock-down which allowed unaccompanied foreign minors to make “Quarantine Diaries” in which they could express their emotions. (24)One of the consequences of the lock-down being the exclusion of migrants, particularly vulnerable ones, this project enabled not only the development of the creativity of the unaccompanied minors (25) but also make them feel more visible.
However, governments interactions with unaccompanied minors are limited, if not, non-existent. Albeit the recovery of the State from this crisis is essential, the well-being and health of unaccompanied foreign minors are equally important.
At the EU level.
In light of these events, the EU has taken some measures to improve the conditions for unaccompanied minors and to be more in line with European and International law.
The relocation plan.
EU Member States agreed upon the resettlement program before the emergence of the COVID-19. Seven States committed taking 16000 refugee children. Impossible to achieve during the lock-down, it is now urgent to relocate the unaccompanied minors. Not only the COVID-19 significantly endangered the life of unaccompanied minors but the Greek Government has also reduced funding for migrant housing program.(26) As of mid-June, there were over 4800 unaccompanied children in Greece: minors are either in overcrowded camps or in the streets. Some of the relocations already occurred, for instance in Luxembourg (12 children) (27) or Portugal (25 children)(28). Germany, albeit already taking care of numerous unaccompanied minors(29), has also started the transfer process, prioritising unaccompanied minors and particularly minors in critical condition and unaccompanied girls.
The views on this resettlement scheme and the number agreed upon by States are divided. Whereas some say “it’s a start”,(30) others consider it is not enough.(31) This ambitious and necessary relocation plan echoes with the one made in 2015, infamous because of its inefficiency. While the 2015 relocation program has failed, it would be interesting to see if the Member States, which have volunteered for the 2020 plan, will fulfil their commitment this time (32)
The family reunification.
Enabling family reunification is an essential way of ensuring the best interest of unaccompanied foreign minors. Recently, the Council of Europe issued a handbook on Family reunification for refugee and migrant children. During the launch of this handbook, the Special Representative of the Secretary of migrants and refugees, Drahoslav Štefánek stated: “In the absence of sustainable relocation agreements, family reunification remains a feasible legal pathway to decongest facilities in front-line countries and to promote effective asylum procedures throughout the continent. It is a vital tool to ensure respect for children’s rights and their best interests”. In the handbook, the Council of Europe provided guidelines for lawmakers to ensure the most child-adapted family reunification possible. (33)
Additionally, the Commission stated that family reunification is essential to safeguard the well-being of unaccompanied minors in a Communication(34). Even during the context of the sanitary crisis, the Commission stresses that family reunification is essential to ensure the best interest of the child.
The “first-ever”(35) Strategy on Victims’ Rights
Unaccompanied foreign minors have a multilayered vulnerability. Indeed, they are children and migrants. As children, they are protected by the principle of the best interest of the child (Convention of New York and Article 24 of the Charter of Fundamental Rights). As migrants, they are protected by special provisions in legal texts that compose the Common European Asylum System (hereafter CEAS) such as Article 23 of the Reception Directive.(36) However, one aspect which is not stressed upon — at least until now — by EU lawmakers is the fact that often, unaccompanied minors are undocumented and have endured violence and mistreatment during the migrant journey.
To remedy this deficiency in the EU legal system, lawmakers have established the Strategy on Victims’ Rights. This Strategy aims at ensuring the protection of victims of crimes that are in situations of vulnerability such as undocumented victims. This text could symbolise the fact that the EU is turning over a new leaf. Instead of only considering migration through the security prism, it takes into account the fragile condition of undocumented migrants as people often take advantage of their precarious situation. The NGO PICUM express: “By recognising that being undocumented itself can reinforce victimisation, the Strategy on Victims’ Rights is a critical step towards recognising – and therefore being able to address – the systematic factors that contribute to victimisation and that create barriers to safety, protection and access to justice”.(37)
In this Strategy, the European Commission admits that albeit there was progress in terms of legislation regarding victims’ rights, “victims of crime still cannot fully rely on their rights in the EU”.(38) The Commission also evoked the need to establish an approach to victim’s right tailored to the specific need of vulnerable persons especially children who “may lack the necessary digital skills or awareness of the remedies at their disposal”.(39) As approximately 1800 unaccompanied child migrants and refugees are missing in Germany, this Strategy is essential whether they ran from their facilities because of mistreatment or, they fell prey to human traffickers. (40)
A reform of the Common European Asylum System child-friendly?
The CEAS is a package of legislation concerning the procedure of asylum, qualification and the reception of asylum seekers. As mentioned above, the CEAS package comprehends measures specific to children. However, in practice, these provisions are not sufficient, or at least not sufficiently implemented by Member States. Since May 4th 2016, EU lawmakers work on the reform of the Common European Asylum System. (41)
The Commission declared in a Communication on the Protection of Children in Migration, the necessity to improve the regulatory framework for children through the reform of the CEAS package with “the aim to provide a series of coordinated and effective actions to the pressing protection gaps and needs that children face once they reach Europe, ranging from their identification, reception, implementation of procedural safeguards, as well as establishment of durable solutions”. (42)
Indeed, EU lawmakers modified the CEAS package to ensure more safeguard to children, particularly on the appointment of a guardian. (43) In the Eurodac regulation (44) which foresees the identification of asylum applicants through fingerprint datasets, EU lawmakers established new provisions regarding the identification of minors through fingerprints and facial images. However, measures regarding detention have not changed significantly: Article 30 (1) (a) on the access to the procedure in detention facilities or border(45), solely the sentence “where it is likely that the person is an unaccompanied minor” was added. (46)
The European Economic and Social Committee (hereafter EESC) considers that the CEAS reform package II is not sufficient regarding unaccompanied minors. In a non-legally binding opinion, the EESC expresses its concern on the “limitation of the right of minors to education, the application of a procedure to unaccompanied minors at the border, the possible lack of a case-by-case approach when analysing the safe country concepts”(47). Since the CEAS reform is still pending as of today, (48)the fate of unaccompanied minors remains uncertain.
Conclusion:
Although this article highlighted the hardships intrinsic to the status of unaccompanied foreign minors, it did not delve into the added difficulty of the age assessment – which is a subject in its own. The best interest of the child implies that authorities, when uncertain about the age of an alleged unaccompanied minor should presume he or she is minor and take measures accordingly.
However, more and more, the qualification of the age of a minor is challenged. And, in the meantime, authorities usually do not consider the individuals as minors and do not grant them proper safeguard. As the tools to assess the age are uncertain and only provide a range of age, authorities should give the benefit of the doubt and thus consider he or she is a minor in case of doubt. Instead, the contestation entails a climate of suspicion towards the unaccompanied minor. And, the uncertainty of the test leads the authority to consider the individual is not minor. As such, he does not benefit from the proper safeguard.
Furthermore, the question of vulnerability is a sensible and difficult one as it hierarchies the situation of different persons. This prioritisation can be arbitrary: is a young adult of 18 who just arrived in a country without his family in need of less protection than a minor of 17?
Thus, the apprehension of unaccompanied migrant minors by EU law is not an easy task. Not only should the EU and the Member States provide more safeguard for unaccompanied minors and ensure their efficiency, but they should also find a way to establish a transition (49) between the status of unaccompanied minors and of young adults. In this context of reform, the solution lies in a human-rights based and child-adapted legislation.
Adèle Monod
1 Médecins sans frontières, Mineurs isolés étrangers à la rue, les pouvoirs publics font la sourde-oreille, Communiqué de presse, July 13th 2020, available on https://www.msf.fr/communiques-presse/mineurs-isoles-etrangers-a-la-rue-les-pouvoirs-publics-font-la-sourde-oreille
2 Human Rights Watch, Greece: Free Unaccompanied Migrant Children, April 14th 2020, available on https://www.hrw.org/news/2020/04/14/greece-free-unaccompanied-migrant-children
3 Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection available on https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32013L0033
4 European Commission, Urban Agenda for the EU, Partnership on Inclusion of migrants and refugees, « Action Plan », available on https://ec.europa.eu/futurium/en/system/files/ged/action_plan_inclusion_of_migrants_and_refugees.pdf
5 Op cit iii
6 M. NOWAK, United Nations Global study on children deprived of liberty, November 2019, available on https://childrendeprivedofliberty.info/wp-content/uploads/2020/01/Full-Global-Study-Nov-2019.pdf
7 ibid
8 European Union Agency for Fundamental Rights, Fundamental Rights Report 2020, available on https://fra.europa.eu/en/publication/2020/fundamental-rights-report-2020-fra-opinions
9 ibid
10 Op cit iii
11 ibid
12 European Commission, Communication from the Commission to the European Parliament and the Council, « The protection of children in migration », April 12th 2017, COM (2017) 211 final, available on https://ec.europa.eu/home-affairs/sites/homeaffairsfiles/what-we-do/policies/european-agenda-migration/20170412_communication_on_the_protection_of_children_in_migration_en.pdf
13 Op cit ii
14 Op cit iii
15 WHO Regional Office for Europe, Health of Refugee and Migrant Children and Unaccompanied Minors, June 15th 2018, available on https://www.youtube.com/watch?v=zLFrvscwAcw
16 A.-D. LOUARN, «In Calais, at least 1,200 migrants are on the streets, twice as many as last summer », Infomigrants, June 26th 2020, available on https://www.infomigrants.net/en/post/25590/in-calais-at-least-1-200-migrants-are-on-the-streets-twice-as-many-as-last-summer
17 Défenseur des droits, Rapport : Exilés et droits fondamentaux, trois ans après le rapport Calais, December 2018, available on https://www.defenseurdesdroits.fr/sites/default/files/atoms/files/rapportcalais-num-14.12.18.pdf
18 Op cit ix
19 Op cit xiv
20 The Lancet, Lettre ouverte des professionnels de santé à l’encontre de la détention des migrants, vol. 388, November 19th, 2016, p.2473-2474, available on https://ansm.sante.fr/content/download/168105/2197157/version/1/file/Dhpc-191022-Dantrium.pdf
21 International Detention Coalition, Captured Childhood, 2012, p.50, available on https://idcoalition.org/publication/captured-childhood/
22 L’initiative pour les enfants migrants, Détention d’enfants migrants dans l’UE, Mars 2019, available on https://europe.ohchr.org/Documents/Publications/Paper-ChildImmigrationDetentionintheEU-EN.pdf
23 Keep Talking Greece, Greece extends lockdown in refugee camps amid tourist season, July 5th 2020, available on https://www.keeptalkinggreece.com/2020/07/05/lockdown-mitrants-camps-greece/
24 ANSA, Unaccompanied migrant children make videos of their lock-down feelings, InfoMigrants, July 1st 2020, available on https://www.infomigrants.net/en/post/25721/unaccompanied-migrant-children-make-videos-of-their-lockdown-feelings
25 Redazione Piuculture, I diari della quarentena di « Niente Paura », Jun 23rd 2020, available on https://www.youtube.com/watch?v=xR0Bt6CmehY
26 ANSA, Greece reduces funding for migrant housing program, InfoMigrants,June 22nd 2020, available on https://www.infomigrants.net/en/post/25509/greece-reduces-funding-for-migrant-housing-program
27 E. WALLIS, « It’s a small start »: Luxembourg transfers 12 migrant children from Greece, InfoMigrants, May 15th 2020, available on https://www.infomigrants.net/en/post/24106/it-s-a-small-start-luxembourg-transfers-12-migrant-children-from-greece
28 L. PAPADIMAS, Greece relocates group of young refugees to Portugal, WIBQ, July 7th 2020, available on https://wibqam.com/2020/07/07/greece-relocates-group-of-young-refugees-to-portugal/
29 Deutsche Welle, From Greece to Germany : How do you give 58 refugee children a new home ?, InfoMigrants, April 17th 2020, available on https://www.infomigrants.net/en/post/24160/from-greece-to-germany-how-do-you-give-58-refugee-children-a-new-home
30 For instance, Boris Pistorius Interior Minister of Germany https://www.dw.com/en/germany-takes-in-afghan-syrian-refugee-children-from-greek-camp/a-53172989 and Jean Asselborn Luxembourg’s Foreign Minister https://www.infomigrants.net/en/post/24106/it-s-a-small-start-luxembourg-transfers-12-migrant-children-from-greece
31 Op cit xxi
32 H. DOSHI and R. GOYAL, The plight of unaccompanied migrant in Greek detention system : A national and international perspective, 8 July 2020, European Law Blog, available on https://europeanlawblog.eu/2020/07/08/the-plight-of-unaccompanied-migrant-minors-in-greek-detention-system-a-national-and-international-perspective/#more-6367
33 Council of Europe, Family reunification for refugee and migrant children – Standards and promising practices, April 2020, available on https://edoc.coe.int/fr/rfugis/8183-family-reunification-for-refugee-and-migrant-children-standards-and-promising-practices.html
34 European Commission, Communication from the Commission, COVID-19 : Guidance on the implementation of relevant EU provisions in the area of asylum and return procedures and on resettlement, April 17th 2020, C126/12 available on https://ec.europa.eu/info/sites/info/files/guidance-implementation-eu-provisions-asylum-retur-procedures-resettlement.pdf
35 PICUM, An EU Strategy that promotes and reinforces the rights of all victims – regardless of residence status, July 9th 2020, available on https://picum.org/an-eu-strategy-that-promotes-and-reinforces-the-rights-of-all-victims-regardless-of-residence-status/
36 Op cit iii
37 Op cit xxxv
38 Commission, “Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the regions EU Strategy on victims’ right (2020-2025), COM(2020) 258 final, Brussels, 24 June 2020 available on https://ec.europa.eu/info/sites/info/files/law/2_en_act_part1_v10.pdf
39 ibid
40 InfoMigrants, Nearly 1,800 unaccompanied minors missing in Germany, April 20th 2020, available on https://www.infomigrants.net/en/post/24227/nearly-1-800-unaccompanied-minors-missing-in-germany
41 European Council and Council of the European Union, Timeline : reform of EU asylum rules, March 27th 2019, available on https://www.consilium.europa.eu/en/policies/ceas-reform/ceas-reform-timeline/
42 Op cit vii
43 European Commission, “Child specific provisions in the Common European Asylum Package, Proposals of 4 May 2016 and 13 July 2016”, available on https://ec.europa.eu/info/sites/info/files/ceasprovisiononchildrentableupdateden.pdf
44 Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints, available on https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32013R0603
45 Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast), available on https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013L0032&from=FR
46 ibid
47 European Economic and Social Committee, “Common European Asylum System Reform Package II”, 14th December 2016, OJ OJ C 75, 10.3.2017, p. 97, available on https://www.eesc.europa.eu/en/our-work/opinions-information-reports/opinions/common-european-asylum-system-reform-package-ii
48 European Parliament, “Legislative Train Schedule — Towards a new policy on migration”, available on https://www.europarl.europa.eu/legislative-train/theme-towards-a-new-policy-on-migration/file-reform-of-the-common-european-asylum-system-(ceas)”
49 Op cit iv