Realising International Protection for Children

By Kanics Jyothi, 28 Oct 2008

When the Refugee Convention was adopted in 1951 there was little awareness of the special needs and rights of children. It is not surprising then that age was not included in the refugee definition as a specific ground for seeking asylum. At that time, it was not recognised that an individual may be targeted for specific forms of persecution simply because of their age or that some violations may have a more serious impact on the young, which in some cases may amount to persecution.

In recent decades, international human rights law has developed to further clarify the entitlements of children and those seeking international protection. For example, the Convention on the Rights of the Child (CRC) obliges States Parties to take appropriate measures to ensure that asylum seeking and refugee children receive appropriate protection and humanitarian assistance in the enjoyment of all their rights.(1)

Furthermore, the understanding of the refugee definition has evolved to include child-specific forms of persecution.(2) Specifically, the UNHCR Guidelines clarify that:

It should be further borne in mind that, under the CRC, children are recognized certain specific human rights, and that the manner in which those rights may be violated as well as the nature of such violations may be different from those that may occur in the case of adults. Certain policies and practices constituting gross violations of specific rights of the child may, under certain circumstances, lead to situations that fall within the scope of the Refugee Convention. Examples of such policies and practices are the recruitment of children for regular or irregular armies, their subjection to forced labour (as defined in ILO Convention No. 182 Worst Forms of Child Labour), the trafficking of children for prostitution and sexual exploitation and the practice of female genital mutilation.(3)

More recently, the UN Committee on the Rights of the Child also emphasised in its G_eneral Comment No 6_ that the refugee definition must be interpreted in an age-sensitive manner, “taking into account the particular motives for, and forms and manifestations of, persecution experienced by children.”(4)

The Separated Children in Europe Programme also highlights the need to be aware of child-specific forms of persecution in its Statement of Good Practice(5) stating that legal representatives should be skilled in representing children and be aware of child-specific forms of persecution. Furthermore, authorities should consider child-specific forms of human rights violations, such as, but not limited to, the recruitment of children into armies, female genital mutilation, forced labour and trafficking for sexual exploitation.

With regards to the application of the refugee definition to trafficked children, more recent guidelines (6) published by UNHCR further specify that children (or certain social subsets of children such as separated children, orphans or street children) may be considered a “particular social group” and that “belonging to such a particular social group may be one of the factors contributing to an individual’s fear of being subjected to persecution, for example, to sexual exploitation, as a result of being, or fearing being, trafficked.”

Most notably, the concept of child-specific persecution has not only made its way into international standards and guidelines, but it is also now enshrined in the European Union’s legal framework.(7) As a result, the term has been transposed into national legislation throughout Europe. Yet, only a handful of countries have adopted guidelines to assist decision makers in assessing protection claims from children. Unfortunately, research shows that child-specific persecution is not sufficiently taken into account in practice and that children are often granted temporary humanitarian protection, rather than refugee status even when they may have a strong claim.(8) In many countries, the lack of formal recognition of refugee status will likely affect the child’s access to services, education and long-term residency options.

In order to improve current practice, as noted by the Committee on the Rights of the Child, staff involved in status determination procedures of children must receive appropriate training and country of origin information should include information on the situation of children, including those belonging to minorities or marginalized groups. Anonymised decisions should be published with the aim of creating a transparent and consistent decisionmaking system in which respect for the best interests of the child may be monitored.

It is crucial that more be done to promote guidelines and good practice in this field in order to recognise the rights of children and ensure protection including a durable solution that provides long-term safety and stability. As the European Union moves forward with the further development of the Common European Asylum System, strengthening child protection measures should be a key priority. As Save the Children(9) and others have advocated, detailed guidelines on child-specific persecution should be developed as part of this process.

The new age-sensitive guidelines that UNHCR plans to issue in the near future will no doubt provide more guidance for such an initiative. Non-governmental organisations should consider developing a practical advocacy guide regarding the full implementation of the forthcoming age-sensitive guidelines in the EU context as has been done following the publication of UNHCR’s gender guidelines.(10) Realisation of such measures would be an important step forward towards guaranteeing protection and future opportunities to those deserving children, who have experienced or who fear some of the most egregious human rights violations.

Footnotes:

1 – UN Convention on the Rights of the Child – Article 22
2 – Edwards, Alice. Age and Gender Dimensions in International Refugee Law. http://www.unhcr.org/publ/PUBL/419c74784.pdf
3 – UNHCR. Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum, 1997
4 – General Comment No 6 on Treatment of Unaccompanied and Separated Children outside their Country of Origin http://www2.ohchr.org/english/bodies/crc/docs/GC6.pdf
5 – See Separated Children in Europe Programme, Statement of Good Practice
http://www.separated-children-europe-programme.org/separated_children/good_practice/index.html
6 – See UNHCR Guidelines on International Protection: The application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to victims of trafficking and persons at risk of being trafficked
http://www.unhcr.org.au/pdfs/IOMtraffickingvictims.pdf
7 – EU Qualification Directive recitals state that it is necessary, when assessing applications from minors for international protection, that Member States should have regard to child-specific forms of persecution. Article 9 (2) clarifies that acts of persecution can take the form of acts of a gender-specific or child-specific nature.
8 – Halvorsen, Kate. Asylum Decisions on Child Applicants: Report on 4-Country Pilot Project, 2004.
http://www.regjeringen.no/en/dep/krd/documents/reports/reports/2004/Asylum-Decisions-on-Child-Applicants.html?id=420295
See also – Seeking Asylum Alone, November 2006 – http://www.ilpa.org.uk/seeking%20asylum%20alone.pdf
9 – See Submission from Save the Children Europe Group on the Commission Green Paper on the
Future of the Common European Asylum System (COM (2007) 301)
10 – See EWL – http://www.womenlobby.org/SiteResources/data/MediaArchive/Publications/migrant-final_en.pdf