Children in migration: fundamental rights at European borders

Children in migration: fundamental rights at European borders

Children in migration: fundamental rights at European borders

Who is a child?

Council of Europe (CoE) and European Union (EU) law follow, in principle, the definition of “child” (in EU law sometimes referred to as “minor”) included in Article 1 of the United Nations (UN) Convention on the Rights of the Child (CRC): children are individuals who are less than 18 years of age.1 For certain issues – for example, the minimum age to submit an asylum application – EU law leaves some flexibility to Member States.2 Duty to provide protection and care Under the European Convention on Human Rights (ECHR), 3 children in the context of migration, and especially those who are separated or unaccompanied, are considered extremely vulnerable.4 They are entitled to special protection.5 The extreme vulnerability of children to violence, abuse or exploitation takes precedence over considerations relating to the child’s migratory status.6 Under EU law, Article 24 of the Charter of Fundamental Rights of the EU (‘the Charter’)7 states that children have the right to such protection and care as is necessary for their well-being. Children are regarded as “vulnerable persons” in the context of asylum and return procedures. EU Member States are required to take into account their specific situation and needs when implementing EU law.8

Best interests of the child – an overarching principle

The 1989 UN CRC lays down the cornerstone principle of the “best interests of the child.” According to the UN Committee on the Rights of the Child, whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision-making process must evaluate the possible impact of the decision on the child or children concerned.9 Under the ECHR, the best interests of the child must be a primary consideration for states in all matters that regard children, including refugee, asylum-seeking and migrant children.10 Under EU law, Article 24 of the Charter provides that “in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.” This principle is mirrored in secondary EU legislation regulating asylum, return and immigration detention.11

Right to be heard

In accordance with Article 12 (2) of the CRC, a child who is capable of forming his or her own views has the right to express those views freely in all matters affecting the child and must be heard – either directly or through a representative or an appropriate body – in any judicial and administrative proceeding affecting the child. This is an integral part of the best interests assessment.

Under CoE standards, in order to be able to exercise their right to be heard and for their views to be given due weight in accordance with their age and maturity, children in migration have the right to benefit from accurate, child-friendly information in a language they understand.12 Under EU law, children’s right to be heard is a well-established general principle of EU law binding all EU Member States13 and is enshrined in Article 24 of the Charter. Article 23 (2) (d) of the Reception Conditions Directive requires Member States to consider the views of the child in accordance with his or her age and maturity when assessing the best interests of the child. Children are also entitled to receive information, as any other asylum applicant or returnee, in a language that they understand or may reasonable be presumed to understand (Reception Conditions Directive, Article 5; and Return Directive, Article 12).

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