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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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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.

Expulsion (3.1.2)

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

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    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

    necessary documents.

    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).]

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     APPENDIX I

    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

    independently.

    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

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     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,

    1954

    Art. 32: States shall facilitate the naturalisation of stateless

    persons.

    * 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

    case;

     * 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

    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;

    * during the return the child is properly accompanied;

    * after the return the wellbeing of the child should be

    effectively monitored by appropriate authorities or

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agencies.

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

    Punishment

    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

    UNHCR

    Handbook UNHCR Handbook on Procedures and Criteria for Determining Refugee Status

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