Chapter 2: Setting the scene
The scale of the problem
12.It is not possible to say with certainty how many unaccompanied migrant children are in the EU as a whole, including the UK. Eurostat, the EU Agency responsible for collating statistics, publishes data on asylum applicants considered to be unaccompanied minors, disaggregated by age, sex and nationality.4 These show that the numbers have risen steeply in the last three years (see Table 1), to a total in 2015 of just under 90,000. They also indicate that an increasing proportion of children applying for asylum are unaccompanied (rising from around 14% in 2014 to 22% in 2015).
Table 1: Unaccompanied migrant children applying for asylum in EU28, 2013–2015
Year |
2013 |
2014 |
2015 |
|
Total asylum applications, EU28 |
431,090 |
626,960 |
1,321,600 |
|
Unaccompanied minor applicants |
12,725 |
23,150 |
88,245 |
|
Percentage of asylum applicants who were unaccompanied minors |
3.0% |
3.7% |
6.7% |
Source: Eurostat, ‘Asylum and managed migration’: http://ec.europa.eu/eurostat/web/asylum-and-managed-migration/data/database [accessed 21 June 2016]
13.As for the UK, The Rt Hon James Brokenshire MP, Minister of State for Immigration, told us that “there were 3,0435 [asylum applications by unaccompanied minors in 2015], which is an increase of 56% [on 2014]”.6
14.Yet these figures do not reflect the true number of unaccompanied migrant children present in the EU. The European Council on Refugees and Exiles (ECRE) noted that, in 2013, 12,770 unaccompanied migrant children entered the EU without seeking international protection, compared with 12,725 seeking asylum.7 It thus appears that as many unaccompanied children do not make asylum applications as do.
15.We will consider data collection more fully in Chapter 3. For now we note the near unanimity among our witnesses that the data on unaccompanied migrant children in the EU were fragmented and poorly disaggregated. There are no data for the many unaccompanied migrant children who either avoid detection by Member State authorities, or who are asked to move on by those authorities without being registered. Such data as we have are compromised by double counting, since unaccompanied children, like other migrants, move between Member States. Data are often also not comparable across Member States.
16.All that we can say with certainty is that the number of unaccompanied migrant children in the EU runs to many tens of thousands and has grown significantly in recent years.
The impact of the refugee crisis on unaccompanied migrant children
17.In our recent report on The EU Action Plan against migrant smuggling we described the current refugee crisis as the greatest humanitarian problem to have faced the EU since its foundation.8 That crisis has accentuated the problem of the lack of provision of adequate reception conditions for unaccompanied migrant children.9 Witnesses representing Save the Children and ECRE stressed that national asylum systems had been “overwhelmed”,10 even in areas that had otherwise adopted good practices in respect of unaccompanied migrant children.11
18.Kirsty McNeill, Director of Policy, Advocacy and Campaigns at Save the Children, noted that the overstretching of resources had created incentives for national authorities not to treat minors as children. Judith Dennis, Policy Manager at the Refugee Council, explained: “when you are struggling to cope with numbers, identifying people with special needs that you are then going to have to meet is a particular challenge, so some of the weaker responses have been to wave people through.”12
19.In the face of the refugee crisis, EU measures and policies concerning unaccompanied migrant children have proved to be inadequate. Dr Ciara Smyth, Lecturer Above the Bar at the National University of Ireland, Galway, said that the crisis should have created an impetus for the Commission to implement a new action plan for unaccompanied minors13, but no action plan has been forthcoming. Daphne Bouteillet-Paquet, Senior Legal Officer at ECRE, agreed that children’s issues had not been given the prominence that they deserved in EU’s response to the refugee crisis, given that “54% of people arriving in Europe at the moment are women and children,” and that the numbers of unaccompanied migrant children were rising. She concluded: “One could wish that the College [of Commissioners] would not see it as an echo of a problem but as one of the core issues in the current crisis.”14
20.In fact, some of the measures intended to address the wider refugee crisis may present problems for unaccompanied children. For example, the Commission has developed the concept of the ‘Hotspot’, a designated location where resources are concentrated because of high migratory pressures. These are intended to be places where migrants can be registered as they enter the EU, pending possible relocation to another Member State.15 In practice, however, Hotspots in Greece, at least, have come to resemble detention centres.16 According to Dr Vicki Squire and Ms Nina Perkins of the University of Warwick, the segregation of those eligible under the relocation schemes has led to discontent. They also found that at a Hotspot in Sicily not all unaccompanied migrant children had been given free legal advice. With particular reference to age assessments, they concluded: “the EU response to the ‘migration crisis’ has perpetuated the vulnerabilities of the most vulnerable.”17
21.A particular concern, within the context of the EU response to the refugee crisis, is the recent EU-Turkey Agreement, under which all new irregular arrivals in the Greek islands from Turkey will be returned to Turkey.18 Margaret Tuite, Co-ordinator for the Rights of the Child at the European Commission, told us that this arrangement would not apply to children,19 but Ms Bouteillet-Paquet noted that children were not explicitly mentioned in the Agreement, and accordingly there were no explicit safeguards to prevent their return.20
22.Nevertheless, a better response to the wider crisis would, on balance, also help to address the particular problems facing unaccompanied migrant children. In a previous report, we argued that by participating selectively in EU measures intended to address the refugee crisis, the UK Government risked undermining “the EU’s ability to develop a coherent or adequate approach to this humanitarian crisis”.21 Ms McNeill told us that there was a persistent “unwillingness of European governments, including unfortunately our own, to treat the humanitarian crisis that is happening inside the European Union with the seriousness that it deserves.”22 She noted that “until the political consensus is reached that actually this is a humanitarian crisis”, policy would not change to improve the situation for unaccompanied migrant children.23
Key challenges specific to unaccompanied migrant children
23.A selection of the most common problems facing refugees and migrants in the EU, including some that are specific to unaccompanied migrant children, was provided by Ms Tuite, and appears in Box 1.
Box 1: Selected list of problems facing unaccompanied migrant children
|
Source: Supplementary written evidence from Margaret Tuite (UME0038)
24.Unaccompanied migrant children are, of course, particularly vulnerable to all these problems. Many of them face poverty, war or persecution in their countries of origin. During their journey to, or through, the EU, they are particularly vulnerable to smugglers or traffickers, as well as to sexual abuse. According to Ms McNeill, doctors in Save the Children’s Italy programme “found that 50% of the children they are dealing with have an STI [sexually transmitted infection]. That is evidence of them being sexually exploited in transit.”24 These traumatic experiences have long-term effects: according to the NGO Community Action for Refugees and Asylum Seekers (CARAS), “Depression, anxiety and PTSD [Post Traumatic Stress Disorder] are all common, as well as living with extreme grief and loss.”25
25.Julie Ward MEP highlighted the particular difficulties facing those who become separated from their parents along the migration route, as “they are naive and particularly vulnerable because they fall into that situation not having started out in it.”26
26.Baljeet Sandhu, Director of the Migrant and Refugee Children’s Legal Unit, Islington Law Centre, told us that the vulnerability of unaccompanied migrant children presented corresponding challenges for those responsible for caring for them or representing their interests within the host state:
“This group of children is the most vulnerable group that I and my team have ever worked with. In most cases, by the time they have got to us they have suffered some form of psychological or physical injury or harm. Their development has often been impaired and their needs neglected. This has serious implications for professionals seeking to support and represent them.”27
27.The evidence suggests, however, that once unaccompanied migrant children are detected within the Member States, they face new problems at the hands of national authorities, including a culture of suspicion, a failure to take responsibility, and inadequate reception conditions. Ms Tuite noted that:
“Some unaccompanied children have pointed out that on their journey they have been focused entirely on survival, the journey and arrival, and when they get to their destination country they are entirely depleted, but then of course they have to face a whole new set of challenges, so we have to be mindful of all they have gone through.”28
The feasibility of an effective, common European approach
28.Dr Hanne Beirens, Associate Director of the Migration Policy Institute (MPI), described the variation in the numbers of unaccompanied migrant children in EU Member States. At one extreme, Estonia did not receive a single asylum application from an unaccompanied migrant child in 2015, while others “such as Belgium, Greece, Hungary, Malta and Sweden, were overwhelmed.”29 Sweden in fact recorded 35,250 applications in 2015, 40% of the total number across the EU28. Anna Maria Corraza Bildt, a Swedish Member of the European Parliament (MEP), told us: “40 per cent of Sweden’s migration budget goes to children … The police say that in Malmo, which is the big entry point, 80 children arrive every night.”30
29.Despite the variation in numbers, the evidence we received from pan-European networks and cross-border research projects underlined that Member States were facing similar problems.31 For example, a key finding of the MinAs Project was that “although the asylum procedures vary across [France, Austria, Slovenia and the UK], nevertheless the problems of [unaccompanied migrant children] stemming from the procedures are quite similar.”32 Ms Tuite agreed:
“The challenges differ depending, as we see, on geographical location and the numbers of unaccompanied children. In the EU last year, there was a range of asylum applications: from zero to 35,000. That is a huge difference. Then we have to factor in Member States’ responses in terms of the range of services and resources, which vary enormously and have an impact. However, several challenges are common to many Member States.”33
30.We heard strong evidence that these common problems require a common response. Verena Knaus, Senior Policy Adviser at UNICEF, saw:
“A lot of added value in a common European response. These are transnational challenges. These are challenges that relate to data-sharing and closer co-operation among child protection authorities, migration authorities and other services in different countries. This is best done in a common, co-ordinated way because if we try to do it piecemeal, as we see at the moment, we leave a lot of protection gaps open.” 34
31.More fundamentally, the problems facing unaccompanied migrant children are all symptoms of the same over-arching crisis. A common EU response is therefore not only possible, but, as part of the wider response to the refugee crisis, necessary. This requires the EU institutions and the Member States all to act in a joined-up way, something that has been lacking hitherto. As Alison Harvey, Legal Director of the Immigration Law Practitioners Association (ILPA), noted: “To be fair to the Commission, it has done its best. The Commission proposes and Member States dispose.”35 Despite its focus on the prospect of EU withdrawal, the urgency of the crisis is such that the UK Government should play its part, and through the Council encourage other Member States to do the same.
The ‘best interests principle’
32.The fundamental legal principle underlying any common European response is that of the ‘best interests’ of the child. All EU Member States have ratified the UNCRC, which contains 54 Articles setting out universal civil, political, economic, social and cultural rights for children. 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”.36
33.The so-called ‘best interests principle’ features particularly prominently in law and policy relating to unaccompanied migrant children. Article 22 of the UNCRC provides that whether unaccompanied or accompanied by their parents or by any other person, children “shall … receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention”. States undertake to ensure that children enjoy such protection and care as is necessary for their well-being, while taking into account the rights and duties of the child’s parents, legal guardians, or other individuals legally responsible for him or her. To this end, States shall take all appropriate legislative and administrative measures.37
34.Within the context of EU law and policy, the principle of the best interests of the child supposedly underpins all EU activity.38 We were told that the provisions of the Convention safeguarding the best interests principle were enshrined in all the relevant EU legislation such as the EU Returns Directive and the Return Handbook, and the EU’s Anti-Trafficking Directive.39
35.So far as domestic law is concerned, the UK ratified the UNCRC in 1991, and the rights of unaccompanied migrant children are now enshrined in national legislation. Specifically, the Immigration Act 2009 imposes a statutory duty on the Secretary of State, and those acting on his or her behalf, to ensure that all decisions relating to the “immigration, asylum or nationality” of children are discharged having regard to their welfare.40 This is accompanied by detailed guidance on how to conduct a best interests assessment—effectively a welfare checklist for immigration.41
36.Throughout this report, therefore, we have examined the real-life experiences of unaccompanied migrant children through the prism of the best interests principle. What we have discovered is a huge gap between theory and practice. In the following chapters we explore the widespread failure, across the Member States, to apply the universally agreed best interests principle to the many tens of thousands of unaccompanied migrant children who are in the EU today.
4 Eurostat, ‘Asylum and Managed Migration’: http://ec.europa.eu/eurostat/web/asylum-and-managed-migration/data/database [accessed 21 June 2016]
5 The total given by Eurostat is in fact 3,045. This is the highest total since 2008, when 4,285 unaccompanied minors sought asylum in the UK.
8 European Union Committee, EU Action Plan against migrant smuggling (4th Report, Session 2015–16, HL Paper 46)
9 Q 87 (Julie Ward MEP), Q 100 (Roberta Metsola MEP) and supplementary written evidence from ECRE (UME0040)
10 Q 34, Q 44 (Kirsty McNeill)
15 Under Council Decisions (EU) 2015/1523 and (EU) 2015/1601, asylum applicants “in clear need of international protection” are relocated from Italy and Greece to another Member State to have their applications assessed. Asylum applicants are eligible for these schemes if they come from a country from which more than 75% of asylum applicants are awarded some form of international protection.
18 European Council press release, ‘EU-Turkey statement, 18 March 2016’ (March 2016): http://www.consilium.europa.eu/en/press/press-releases/2016/03/18-eu-turkey-statement/ [accessed 21 June 2016]
21 European Union Committee, The United Kingdom opt-in to the proposed Council Decision on the relocation of migrants within the EU (2nd Report, Session 2015–16, HL Paper 22)
31 These include the SUMMIT Report, Best practices and key challenges on interagency cooperation to safeguard unaccompanied children from going missing (February 2016) http://missingchildreneurope.eu/Portals/0/Docs/report_SUMMIT%20-%20Safeguarding%20Unaccompanied%20Migrant%20Minors_1mrt.pdf [accessed 5 July 2016], MinAS Project, Whose best interest? Exploring Unaccompanied Minors Rights through the Lens of Migration and Asylum Processes (October 2015): https://www.brighton.ac.uk/_pdf/research/crome/14-oct-15-final-minas-full-report.pdf [accessed 5 July 2016] and ENOC Report Safety and fundamental rights at stake for children on the move (January 2016): http://enoc.eu/wp-content/uploads/2016/01/ENOC-Task-Force-Children-on-the-Move-1st-report-25Jan2016.pdf [accessed 5 July 2016]
36 UNCRC, Article 3(1)
37 Article 3(2). Under Article 3 the States must also ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
38 Article 24 of the Charter of Fundamental Rights of the European Union
40 Borders, Citizenship and Immigration Act 2009, section 55
41 UK Visas & Immigration, Section 55 guidance, 12 October 2011: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/431346/Section_55_v12.pdf [accessed 11 July 2016]