Contemporary Human Rights Protections for Child Migrants

There are many international legal instruments aiming at the protection of children in migration. Nonetheless, migrant and refugee children continue to suffer human rights violations.

Interner Link: Deutsche Version des Artikels

Across the globe, sizeable numbers of children and adolescents participate in cross-border migration. Their circumstances are varied, as are their needs for international legal protection. While many young people cross borders together with their parents or other relatives, a significant proportion travel completely alone or in the company of unrelated adults, including Interner Link: smugglers or traffickers. There are other major differences in the types of child migration and the needs for protection that they give rise to. Some children move Interner Link: because of their parents’ work, others are forced to flee to escape persecution or war. Some child migrants travel with a legal status, safely; others travel without visas or prior permission, often in hazardous and abusive circumstances. For some children, migration leads to social and economic improvements in their new lives, including reunification with family members, and access to quality schooling and health care. For others, migration leads to social isolation, or the risk of exploitation and economic destitution. Given this broad spectrum of types of child migration, the range of legal protections that children need varies. Some can rely on their families and broader social networks for protection of their needs and rights, without needing the assistance of official welfare services. Many other child migrants, however, are not so fortunate. For them international legal protections may be a critical safety net, the difference between serious danger and suffering on the one hand, and a rights-protected life on the other.

International Legal Protections for Child and Adolescent Migrants

Child migrants, whatever their circumstances, are eligible for a broad range of international human rights protections. These protections derive from a substantial body of international legal instruments that together constitute the contemporary human rights regime. The laws include general conventions protecting all people’s civil and political rights, such as the right to a fair trial, the right to freedom of religious belief, and the right to be protected from discrimination because of one’s race, nationality, gender or other social status. The legal measures also include conventions that protect everyone’s economic, social and cultural rights, such as the right to free primary education and to “enjoyment of the highest attainable standard of physical and mental health”. In addition to these generic human rights protections, there are specialist conventions that address the rights of particular constituencies. Among those particularly relevant to child migrants are the 1951 UN Convention on the Status of Refugees (as amended by its 1967 Protocol), a convention that defines who qualifies as a refugee, the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, that sets out protections for migrants and their children irrespective of their legal status, and two UN Conventions on Statelessness, designed to reduce the prevalence of statelessness and provide protections for stateless people, including children.

All the rights just mentioned, and others relevant to child migrants have been codified in a single instrument, the 1989 UN Convention on the Rights of the Child (CRC). It is this international document, in practice, that provides the key reference point for the protections to which child migrants are entitled – whether these children are asylum-seekers or survivors of trafficking, whether they are accompanied by parents or traveling alone, whether they have a regular immigration status or are undocumented, whether they are toddlers or teenagers. By bringing together all the existing human rights relevant to children in one document, the CRC affords a convenient reference point for the framework of laws and policies available. Moreover, the expert body that oversees implementation of the CRC, the Committee on the Rights of the Child, is, through the “General Comments” that it produces from time to time, an important source of interpretation of the rights in the convention, and of commentary on particular human rights challenges facing children. General Comment No. 6 in particular addresses the “Treatment of Unaccompanied and Separated Children Outside their Country of Origin”. It is a useful reference source.

Among the many international legal protections to which child migrants are entitled, some of the most critical derive from fundamental principles applicable to all children and binding on all states that have ratified the CRC (all states in the world except for the United States). Three are worth highlighting. The first is the non-discrimination principle, which prohibits states from treating children differently because of their citizenship or national origin or legal status. Measures which exclude migrant or undocumented children from primary school or which qualify their access to emergency health care would fall foul of this provision. The second is the best interests principle, which requires states to make the best interests of the child a primary consideration in all actions affecting the child. The effect of this principle in relation to migrant children is to require states making an immigration or refugee decision to assess what is in the child’s best interests and take that into consideration when coming to a conclusion. While this does not mean that a state has to prioritize the child’s best interests against all other factors (that would mean treating best interests as a paramount or trumping consideration, rather than merely a primary consideration among others) it does mean that states cannot simply ignore the child’s best interests in dealing with their case. States that separate migrant children from their families, that subject asylum-seeking children to detention, that deny unaccompanied children access to free legal representation or guardianship as they navigate complex and unfamiliar administrative or legal procedures, violate the best interests principle. A third fundamental principle in the CRC which is highly relevant to migrant and refugee children is the principle guaranteeing a right to legal identity, which includes the right to birth registration immediately after birth, the right to a name, and the right to receive a nationality. Transit or destination states hosting asylum-seeking families that do not register the birth of children or give children born on their territory who would otherwise be stateless a right to their nationality are not in compliance with this requirement.

Apart from these general principles, migrant and refugee children are protected by more specific provisions that are particularly relevant to their needs. For example, the CRC sets out in detail the rights of asylum-seeking and refugee children, including the right to “appropriate protection and humanitarian assistance”, to assistance in tracing family members if separated from them, and to “the same protection as any other child …deprived of family environment”. This means that unaccompanied migrant children should be treated at least as protectively and generously as domestic children outside family care, with the same quality of skilled social work competence and the same level of institutional provision. Special protections also apply to children who are escaping from recruitment as child soldiers, and to children subjected to child sale, prostitution or pornography.

These international principles and the explanatory framework related to them have been incorporated into many domestic and regional regimes. The most extensive regional system addressing rights of child migrants is that of the European Union. Its first concentrated focus on protection of child migrants dates back to a 2010 Action plan designed to ensure legal representation, guardianship and protection from detention for migrant children. More recently, in June 2017, the Council of the European Union has Externer Link: adopted measures on these topics prepared by the European Commission. The EU has also incorporated child rights principles into its policies regarding border controls and reception (housing) of asylum-seekers.

Several civil society organizations have built on the foundations of international law to generate guidelines and recommendations for managing child migrant and refugee cases. A useful Externer Link: compilation of the basic principles relevant to the treatment of these children has been widely circulated and approved by many of the key international and non-governmental organizations working in the child migration space. The basic principles include the stipulation that migration management measures are not to violate children's human rights.

Do States comply with these regulations protecting migrant children or do migration control interests dominate their practice?

Despite the robust edifice of applicable international law protecting the rights of migrant and refugee children, many human rights violations continue to severely affect their lives. Across the globe, whether they are living in refugee camps or in big metropolitan centers, whether they are accompanied by family members or surviving on their own, whether they are still in transit or have arrived at their destinations, many migrant and refugee children face enduring hardship. The most dramatic evidence of rights lacunae is the high number of child migrant fatalities – children represented over 30 percent of the recorded deaths in the Aegean Sea in 2015; many children also die in deserts attempting entry to the US via Mexico, or in sub-Saharan Africa seeking safety away from home. Over 1,200 deaths of children have been recorded by the Interner Link: International Organization of Migration since 2014, “though the real figure is likely to be much higher”. If children fleeing danger and conflict had safe and legal access to protection rather than sharply exclusionary border control to contend with, these deaths would be avoided.

For children who survive the initial journey from home, other lacunae in protection exist. Detention of child migrants, to deter future arrivals and enable repatriation, continues to be a pervasive problem, despite the growing acceptance of the norm that child detention should only be used as a last resort and in the least restrictive circumstances for children affected by migration. In part children are detained because their claim to be minors is challenged by states, and unsatisfactory age determination procedures are used to assess their age, resulting in incarceration until successful appeals against incorrect age determination are held. Even when they are not incarcerated, many migrant and asylum-seeking children find themselves in harsh environments – in camps where they lack educational opportunity or inspiring future prospects, in urban settings where they have difficulty accessing quality schools, apprenticeships or job training options, in shelters where they experience isolation and often depression. The facilities for inclusion, physical and mental support and educational advancement that the CRC mandates are often elusive in practice, not a priority for states contending with xenophobic electorates and calls for migrant exclusion.

Looking Ahead

Despite these challenges, some positive developments are also evident. Across the globe, child migrants are beginning to organize and articulate their opinions and wishes. The most obvious example of this is the Externer Link: "daca-mented" movement of young people in the US, who lack a regular immigration status but are claiming a right of legal inclusion in the country based on their long history of residence and participation as de facto Americans. Other examples of child migrant agency are the Externer Link: demonstrations by Afghan youth in Sweden, the engagement of migrant and refugee youth in social media and broadcasting activities in Interner Link: Germany, the leadership role played by young migrants at international convenings on migration topics.

Moreover, with the United Nations involved in debating a new architecture for international migration and refugee management through the development of two global compacts (one on refugees and one on migrants), one can hope that the rights and the voice of the youngest migrants will receive the prominence and protection they deserve and that finally the strong legacy of international human rights laws will translate into rights-based practice on the ground. Only then will the early aspirations of inclusion, non-discrimination and best interests protection for all children be realized.

Online Resources

UNICEF Externer Link: https://www.unicef.org/

UNHCR Externer Link: http://www.unhcr.org/

International Organization of Migration (IOM) Externer Link: https://www.iom.int/

Migration Policy Institute Externer Link: https://www.migrationpolicy.org/

Interner Link: Deutsche Version des Artikels

This article is part of the policy brief on Interner Link: Child and Youth Migration.

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