Save the Children’s response to the “Green Paper on a community return policy on
Illegal residents”. COM (2002) 175 final
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
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
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
“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
“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.
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.
- it is safe to return the child to his or her home country
- the child‟s carer and guardian/adviser in the host country agree it is in the child‟s best interest to
- 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
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
Green paper suggests that “the EU should consider which forms of support are adequate to ensure that
returns are sustainable” and in the case of separated children this is likely to include on going support to
child and carers after the return and extensive preparation beforehand which may involve home visits.
Cooperation with Countries of Origin and Transit on Return and Readmission (Section 2.5)
We agree with the statement that some voluntary return projects have been less successful because of
lack of preparation in the country to which people were returned. Programmes and aid to facilitate
reintegration of children are as yet limited. In most countries (eg. France, Ireland, Norway, Spain,
Portugal) no programmes or schemes have been developed to facilitate the safe return of a separated
child to his country of origin (although travel expenses for return, and a financial contribution, may be available).
In other countries, eg Italy, return projects have been developed but they have not proved very
successful for example on a sample of 256 Albanian children repatriated from Italy between 1998 and
2000, 155 children emigrated again.
Recommendation: Programmes to assist the reintegration of returned children should be initiated and
supported, based on the principle of voluntary return where conditions for safety and adequate care are
guaranteed. However it is essential that the safeguards set out in UNHCR guidelines and the Statement
of Good Practice are respected.
The following points should be addressed:
? If return is not in the best interests of the child, a durable solution in the host country should be
provided for by law
? Standard criteria should be set out for determining whether care in the country of origin is in line
with the UNCRC. These should include suitable housing, sufficient food and clothing, access to
education and heath care, and alternative care is available.
? Careful documentation should be undertaken in relation to each case so that decision-making is
based on clear and detailed information, and so that a child‟s progress can be followed
? The child has to be accompanied appropriately during the return
? If possible contact with the child and his or her parents or carers should be maintained after the
return journey to monitor the child‟s progress
? Returns should always be carried out in a child-appropriate manner. The authorities should never
hand children over to the border authorities of the country of origin or of a third country without
knowing how the child will be accommodated and cared for.
Children under the age of 18 should be included among the groups that require special protection
against expulsion. There is a necessity to incorporate a final safeguard for non-refoulement
requirements in a future Directive on Minimum standards for return procedures to protect all children,
both those separated and those in families.
Detention and Deportation (Sections 3.1.3 – 3.1.4)
Particular concern surrounds the detention and deportation of children (some of them separated
children). The Convention on the Rights of the Child clearly states that detention of children should not
be used except in the most exceptional circumstances.
Numerous cases have emerged in Germany where the authorities have not sufficiently clarified prior to
a deportation whether separated children will be able to return to their families or relatives or whether
care by public or charities is possible. Frequently the only point that is addressed is whether the border
authorities of the country of origin will permit the children to re-enter. It is not always guaranteed that the
children upon their return will not be endangered and there are cases of children being deported against
the will of their guardians. In addition frequently there is no detailed assessment of the security of the
child and of the family situation in the home country. On many occasions parents and other care-takers
are not being informed about the imminent return of their child and as a rule they are not obliged to take
care of the child immediately after arrival or in the long term. There have been many cases of children
not being properly informed about the process of deportation, and frequently they are neither
accompanied during deportation nor is the situation of the children following their return effectively
supervised by an NGO or an international organisation
Save the Children believes that alternatives to deportation should be available to a separated child
seeking to return to his or country of origin; deportation precludes the possibility of that child seeking to
re-enter the country in the future should they have a renewed need for state protection. If a child is
found to have no legal basis for stay and it is in the best interests of a child to return then a managed return should be effected.
The Green paper raises the question of whether it could be possible to separate families during removal procedures. It is unlikely to be in the best interests of the child to be separated from their families during repatriation.
Identification and Documentation (Section 3.4.2)
Age assessment is one of the most crucial issues in dealing with the cases of separated children because for those who are considered incorrectly to be adults, the implications in terms of their risk of unsafe removal, asylum applications, detention, care etc will lead to the denial of their fundamental rights under the UN Convention on the rights of the Child.
Often age disputes over separated children arise because children arrive without documents or with false documents that wrongly give their age as over 18. There are many reasons for this. It is well known that asylum seekers often have difficulties acquiring passports and visas. The 1951 UN Convention relating to the Status of Refugees recognises that asylum seekers must sometimes travel with false documents in order to flee dangerous situations (Article 31). It may be dangerous to request a passport or visit a consulate to apply for a visa, or it may be impossible to travel to a consulate located in another part of a country, or an asylum seeker may simply have to flee at short notice. Sometimes documents are destroyed by the destruction of dwellings or lost during flight. For children the problem can be compounded if they are not entitled to passports until they reach the age of majority, or their birth has not been registered. If a child‟s parents are dead or missing, she or he may not have access to
Guidelines from UNHCR call for the benefit of the doubt to be given in the absence of clear documentary evidence. The 1997 Guidelines on Policies and Procedures in dealing with
Unaccompanied Children Seeking Asylum states that: “The child should be given the benefit of the doubt if the exact age is uncertain” (para. 5.11(c)). There should therefore be a presumption that
someone claiming to be under 18 years of age, will be treated as such. Separated children must sometimes travel on passports giving their age -wrongly- as over 18. If an age assessment is thought to be necessary, it should be carried out by an independent paediatrician with appropriate expertise and familiarity with the child‟s ethnic/cultural background and should never be forced or culturally
inappropriate. Age assessment is not an exact science and a considerable margin of error can occur.
Annex - Definitions
It is appropriate to include both the definition of a separated child and of a child (from the Convention on the Rights of the Child) in the annex.
Convention on the Rights of the Child, Article 1 – Definition of a Child “For the purposes of the
present Convention, a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier.”
Separated child “Separated children and young people are children under 18 years of age who are
outside their country of origin and separated from both parents or their legal/customary primary care giver. Some children are totally alone while others, may be living with extended family members. All such children are entitled to international protection under a broad range of international and regional instruments.” [CRC Articles 1 & 22, Hague Convention for the Protection of Children 1996, Article 6, HCR Guidelines para 3.1. ECRE paras 8 & 11; EU resolution on Unaccompanied Minors, Art 1(1).]
12. Durable or Long-term Solutions
12.1 Remaining in a Host Country/Country of Asylum
* CRC, Art. 3 12.1.1 A separated child may be allowed to remain in a * UNHCR Guidelines, para. 9.1 & 9.4
host country for a number of reasons: * EU Res., Art. 5(2) * she or he is recognised as a refugee or granted asylum
* she or he receives a defacto or humanitarian status
because it is not safe to return to their country of origin due,
for example, to armed conflict and\or the child‟s parents
are not traceable and their is no suitable carer in the
country of origin
* she or he is allowed to remain under some other
immigration category or, for example, on compassionate
grounds (eg. ill health)
* it is clearly in the child‟s best interests to do so.
12.1.2 Applications by a separated child, residing in a “host” * CRC, Art.10. See point C8 country, for family reunion in a that country should be dealt * ECHR, Art. 8: See point B6. with in a “positive, humane and expeditious manner”. (CRC, * ICCPR Art. 23: See point C8. Art.10)
12.1.3 Integration * CRC, Arts. 13, 14,15, 16, 19, 20, 25, 26, 27 & 30 . See Once a separated child is allowed to remain, care/welfare points B4, B5, B6, C3 & C10(1). authorities should conduct a careful assessment of the child‟s * 1951 Refugee Convention situation (taking into account her or his age, sex, care history, Art. 21: Housing provision for recognised refugees mental and physical health, education and family situation in Art. 23: Provision of “public relief” for recognised refugees the country of origin). In consultation with the child, a long-Art. 24: Working conditions and social security provisions term placement in the community should then be arranged. for recognised refugees This may of course be a continuation of the interim care * UNHCR Guidelines, paras. 10.6 - 10.9 placement. It is generally desirable that children under 15/16 * EU Res., Art. 4(7) years of age be cared for in a foster family from their own
culture. Older children may prefer/do well in a small group
home environment. This should be staffed by adults aware of
the separated children‟s cultural needs. Separated children
who have left care should be offered support via an “after-
care” programme, to assist their transition to living
As a matter of principle, siblings should be kept together in
the same placement unless they wish otherwise. If a sibling
group is living independently, with the oldest taking
responsibility, then he or she should be provided with
particular support and advice. The rights of separated children to education and training, * CRC, Arts. 23, 24, 28, 29(1c), 30, 39: see points C10.2 & health care, language support (as per paragraph 10) should C10.3 continue on the same basis as available to national children. * 1951 Refugee Convention
Art. 22: Education rights of recognised refugees.
* UNHCR Guidelines, para. 10.10
12.1.4 Adoption Adoption is rarely, if ever, a suitable option for a separated * CRC, Art. 21: States obligations with regard to child. Before adoption can be considered viable or desirable, intercountry adoption. a rigorous assessment, conducted by an authorised * Hague Convention on Protection of Children and Co-organisation, of the child‟s family circumstances in the operation in Respect of Intercountry Adoption 1993 country of origin is essential. Clear procedures and are * “Recommendation Concerning the Application to outlined in the recommendation of the Hague Conference on Refugee Children and Other Internationally Displaced Private International Law. Children of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry
Adoption”, Oct, 1994
12.1.5 Identity and Nationality Separated children who are found to be stateless, should be * CRC, Art. 7(1): Children have the right to acquire a assisted to acquire nationality. nationality. * ICCPR, Art. 24(3)
* 1951 Refugee Convention
Art. 27 & 28: States shall issue identity papers and travel
documents to recognised refugees.
Art. 34: States shall facilitate the naturalisation of refugees.
* Convention Relating to the Status of Stateless Persons,
Art. 32: States shall facilitate the naturalisation of stateless
* Council of Europe: Recommendations 564 & 984.
12.2 Return to Country of Origin * UNHCR : Refugee Children: Guidelines on Protection 12.2.1 This is a complex area and detailed guidance is and Care, 1994, page 138. required on the implementation of good practice. The best
way for family reunification and returns to be carried out is on
a voluntary basis. Children and should be fully consulted at
all stages of the process. 12.2.2 (a) Before a separated child can be returned to a * CRC Art. 19, 37(a), 38 & 39: See point C10.1, C10.2 & country of origin the following must be in place: C11.6 * it is safe to return the child to his or her home country; * 1951 Refugee Convention * the child‟s carer and guardian/adviser in the host country Art. 32(1): States shall not expel a refugee lawfully in their agree it is in the child‟s best interests to return; territory. * a careful assessment is made of the family situation in Art. 33. See point C1.1 the home country and whether it is safe to return a child to * CAT, Art. 3: See point C1.1 that country. It will be necessary to investigate the ability of * UNHCR Guidelines, paras. 9.4, 9.5, 10.5, 10.12 - 10.14
the child‟s family (parents or other family members) to * EU Res., Art. 5 provide appropriate care. In the absence of parents or other
family members, the suitability of child-care agencies in the
country of origin should be investigated;
* 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) or
person(s) and should be objective, non-political and take
into consideration the best interests of the child in each
* the child‟s parents, relatives, other adult care-taker or
government child-care agency agree to provide immediate
and long-term care upon the child‟s arrival in the country of
* 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;
* during the return the child is properly accompanied;
* after the return the wellbeing of the child should be
effectively monitored by appropriate authorities or
12.2.2 (b) Separated children who arrived as minors but
who have reached the age of 18 should be treated as
vulnerable and consulted on the conditions required for a
successful reintegration into their country of origin. 12.3 Settlement in a Third Country * CRC, Art. 10(1): See point C9. When a child has a family member in another European * ECHR, Art. 8: See point B6. state who is willing and able to care for the child then family * UNHCR Guidelines, para. 10.11 reunification should be expedited as per paragraph 9. Where she or he has a family member in a non-European
third country the opportunity for family reunification should
be explored but to the same standards as indicated in
paragraph 12.2. Care must be taken in order to ensure
that the third country is a safe place for the child.
Key to abbreviations:
CRC UN Convention on the Rights of the Child
CAT Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
CERD International Convention on the Elimination of All Forms of Racial Discrimination
ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms
EU Res. EU Resolution on Unaccompanied Minors Who are Nationals of Third Countries
UNHCR Guidelines UNHCR Guidelines on Policies and Procedures in Dealing with Unaccompanied
Children Seeking Asylum
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
UDHR Universal Declaration of Human Rights
UNHCR UN High Commissioner for Refugees
Handbook UNHCR Handbook on Procedures and Criteria for Determining Refugee Status