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By Julia Ferguson,2014-06-18 00:31
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Save the Children’s response to the “Green Paper on a community return policy on

    Illegal residents”. COM (2002) 175 final

Background

    Save the Children is an international children‟s rights organisation working in over 100 countries

    worldwide. We work globally to promote the rights of the child and at EU level to influence EU policy

    and legislation to ensure children‟s rights are promoted and protected. We are actively working on EU

    asylum and immigration policy and are enclosing our comments on the Green paper on return policy on

    illegal residents.

General Comment

We are surprised that in a document on 25 pages there are only two limited references to children in

    the section on vulnerable groups. The Commission has previously recognised in draft Directives that

    children, particularly unaccompanied (or separated) children have very specific needs and rights and

    specific clauses are needed in Directives to ensure that these are protected. The 1997 EU Resolution

    on Unaccompanied Minors reiterates in Article 5(1-2) the key principle that Member states may only

    return a separated (or unaccompanied) child to his country of origin or a third country if on arrival,

    adequate reception and care are available and that they should in principle make it possible for the child

    to remain on the territory if the conditions for return are not met.

On the basis of the UN Convention on the Rights of the Child, ratified by all EU member states and

    candidate countries, the general criterion which must guide the choice between repatriation and

    remaining in the host country is the principle of “the best interests of the child”, on the basis of which “In

    all actions concerning children, whether undertaken by public or private social welfare institutions, courts

    of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary

    consideration” (Convention on the Rights of the Child – Article 3) Consequently the decision whether

    the child should remain in the host country or be repatriated should be taken on the basis of what is

    considered case by case to correspond to the best interests of each single child.

Children without legal residence - Contexts

    There are cases of parents who “rent” their children to traffickers who bring them to Greece to

    work. Children begging or working in the streets are considered deliquent under Greek law

    and if arrested they are either referred to Social Services or deported (depending on their age).

    In most cases family tracing is successful. Nevertheless, children are not always accepted by

    their parents in the countries of origin, due to previous binding “contracts” with the traffickers.

The Green paper clearly states that it is dealing with people who are illegally resident. Our comments

    deal with returns of children who are not legally resident and follow the structure of the Green paper and

    the questions raised in it.

The Green paper states “A return policy is needed in order to safeguard the integrity of the legal and

    humanitarian admission system.” Because conditions of access to the territory for separated

    (unaccompanied) children are very different between the member states, in our view a return policy

    cannot be seen in isolation from an entry policy for these children. In some member states entry is

    relatively easy, whilst in others a very high proportion of separated children enter and remain on the

    territory illegally. In addition data is very incomplete for this group.

Across European states there is considerable evidence of very variable practice regarding return of

    children. In one member state although return cases are rare, there appears to be no family

    assessment, no preparation for immediate and long-term care in the country of origin, and no analysis of

    conditions in the country or origin. In another no research is undertaken by the authorities to see

    whether the reception in the home country or a third country will be appropriate and administrative

    measures like deportation and forcible return are implemented without any effort to verify what happens

    to children in a third country or their home country.

a) Trafficked children

The most serious reason why a child would be residing illegally is that they will have been trafficked for

    the purposes of economic or sexual exploitation. Whilst they may be able to claim subsidiary protection

    or a permit of stay (in future) if they are willing to testify against their traffickers, in many cases they will

    simply be deported and re-trafficked. In our view, there is an urgent need for a return policy and

    admissions policy to address this extremely vulnerable group. Many children, particularly girls are fearful

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of the shame that will face them when they are re-united with their families and are therefore frightened

    to return home immediately.

    “E.B. was 14 years only when her father sold her to a man from Fier for 145 US D. For four

    years she has worked on the streets of Milan day and night….She was arrested by the police

    and returned to Albania by ferry. She wants to see her family but is fearful of her father and the

    trafficker who might find her again.”

Sometimes return is simply not effective, as the families do not want them back and they are

    immediately retrafficked:-

    “Girls stay in the police station for 24 hours while their families are notified. As few families

    accept them back, most of them are almost immediately retrafficked.. Witnesses describe how

    traffickers wait outside the police station for the women to be released.”

It also has to recognised that the process may be very time consuming and that immediate return is not

    always possible:

     “Generally the family is negative and it takes a lot of hard work to broker a solution. The

    majority of the families are very poor and sometimes it can take 6 months to broker a

    solution….some families just see their children as a means of making money.”

     b) Young people on the territory who reach 18

     thAnother reason that children are returned is that the reach their 18 birthday and their permit to stay

    expires. Save the Children believes that young people who arrive on the territory of a European state as

    separated children and have reached the age of eighteen should be treated in a generous manner and

    full regard should be given to their vulnerable status.

It is important that states should not provide norms that make it impossible for these young people to

    remain legally. These young people should be allowed to renew their residence permit when they come

    of age if they satisfy certain conditions proving their integration (eg if they are working or studying) or if

    they are in a particularly vulnerable situation.

     c) Children whose claims for asylum have been turned down

In many cases children whose asylum claims have been turned down simply go underground in an effort

    to avoid being sent home. Little is known about the fate of these young people.

d) Children who are economic migrants

    M is a 14 year old Moroccan boy who left for Italy. He ended up in the house of a distant uncle,

    who asked him to pay for board and lodging. M started to sell paper handkerchiefs as a street

    hawker to earn money. Life was hard for M, he had to stand out in the street all day and was

    approached by older boys who offered him a ”job” as a drug pusher.

In the above case “M” was repatriated and attended a traineeship in his country of origin. Cases like ”M”

    above are quite rare, and in particular the situation where the child remains at home are very rare. In

    this case, following an evaluation of the best interests of the child, repatriation was probably the solution

    that was most in line with the child‟s best interests.

General Recommendations:-

The situations and case studies are typical of the complex and different situations that Save the Children

    deals with regarding returns and demonstrate the need to have an individual approach which places the

    child‟s best interests at the centre. The key point is that a thorough evaluation of what is in the child‟s

    best interests must be central to decisions about remaining on the territory or returning.

Save the Children in “Separated Children in Europe Programme - Statement of good practice” has

    outlined key principles that should govern return, these come from the Convention on the Rights of the

    Child, ratified by all EU member states, or from other binding or non binding instruments (each is

    referenced below). Section 12 of this statement is annexed as an appendix.

    Return of children must be dealt with on a case by case basis and with certain key principles in place.

    These include:-

- it is safe to return the child to his or her home country

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    - the child‟s carer and guardian/adviser in the host country agree it is in the child‟s best interest to

    return

    - a careful assessment is made of the family situation in the home country

    - this investigation should be carried out by a professional and independent organisation (that is

    different from the body or person(s) making the initial determination) and should be objective, non-

    political and take into consideration the best interests of the child in each case.

    - The child‟s parents, relatives and other adult carer or government child care agency agree to

    provide immediate and long term care upon arrival in the country of origin

    - the child is fully informed at all stages and is provided with appropriate counselling and support

    - prior to the return contact between the child and his or her family is facilitated

    - the child should be listened to and due weight given to her or his views in accordance with his or

    her age and maturity in the choice between return or remaining in the host country

(A full list included in the appendix).

Voluntary Return and Forced Return (Green paper - Section 2.3)

Save the Children in “Separated Children Seeking Asylum in Europe: A programme for Action” has

    carried out assessments of return policy in the EU. It documents variable practice with regard to return

    of children.

     In many states (eg. Denmark, Finland, France and Germany) there are no regulations

    concerning voluntary return for separated children. In Sweden, individual regions have

    produced their own guidelines on return issues. In Ireland, the lack of legal provision means

    that, at present, if a separated child wished to return to their country of origin, their only option

    would be to be deported from the State. In Spain, where the Government supports the principle

    of repatriation, many children do not want to be returned and they come back to Spain (usually

    from Morocco) within 24-48 hours.

In some states, voluntary returns of separated children are unknown. Often it is judged unsafe to send

    the child back, and sometimes children are returned by relatives without consultation with the authorities.

It is important to clarify what voluntary return means in practice. There are doubts as to whether the so-

    called „voluntary‟ returns in some member states are indeed voluntary in nature, or whether it is in many

    cases a forced return against the wish of the child, based on the fact that the authorities have made it

    clear to the child that she/he has no chance whatsoever to remain legally.

Authorities should make every effort to ensure that return of children is carried out on a voluntary basis

    and that deportation and in particular pre-deportation detention is not used. With regard to specific

    suggestions in the Green paper, we agree that services helping people prepare for return and guides to

    good practice on the issues of return are important and specifically recommend:-

    ? There is a need for specific guidelines on the return of separated children

    ? Children should be provided with education and professional training that would be useful to them

    on return to their home country

    ? Support to the child‟s family and community should be provided

    ? State authorities should maintain regular contact with relevant international organisations involved

    with return issues

    ? All professionals working on return of children (eg. social workers, legal personnel) should receive

    training on the complex issues involved

     Human Rights and Return (Green Paper Section 2.4)

Save the Children believes that human rights and specifically children‟s rights should be central to a

    return policy. As such we welcome the recognition of the “child‟s best interests” principle in the Green

    paper, but believe that this needs more development along the lines set out in the Save the

    Children/UNCHR statement of Good practice. We are happy to provide more detailed information on

    the application of the best interests principle. In the proposed draft Directive on Return we believe that a

    detailed clause is necessary on the issue of separated children.

We wish to underline that in the case of children, a child should not be returned simply because s/he is

    not legally resident but is returned only when it is in her or his best interests. Italian law for example

    provides that children cannot be expelled except for grave reasons of public security and public order.

In addition there are specific issues affecting unaccompanied minors who by definition are separated

    from their parents or habitual care givers. Even a relatively short period of time apart from family in the

    country of origin can lead to estrangement which can make it difficult for the child to reintegrate. The

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