Undocumented children face a triple vulnerability: they are below the age of 18, they are migrants and they have irregular status.
In many EU member states there has been a dangerous trend to prioritize immigration control over the rights of undocumented children and their families. Child rights remain largely absent in migration policies and practices, with little systematic consideration of the impacts of policies on children. This is the case when authorities make decisions to grant or refuse status, to detain, to deport, or to restrict access to essential services such as healthcare and education.
At the same time, in many countries undocumented children are not considered by, or are even excluded from, public policies and services. As a result, they are often deprived of their basic rights and entitlements and are left in precarious situations facing poverty and exclusion, with long-term impacts on their health, well-being and development.
In a public hearing held at the European Parliament yesterday, the Platform for International Cooperation on Undocumented Migrants (PICUM) with French MEP Nathalie Griesbeck, representing the Group of the Alliance of Liberals and Democrats for Europe (ALDE), called on EU institutions to ensure the rights of such children under the UN Convention on the Rights of the Child (CRC). They urged them to fulfill their legal obligations and offer protection and access to basic rights and services and cease their immigration detention.
During the hearing, Griesbeck remarked that: ‘The current situation of undocumented children in the European Union and the protection gaps existing in the European and national legislations urgently needs to be tackled with concrete and targeted measures, to ensure that their rights are respected. And there must be two key principles when dealing with undocumented children. First, they are first and foremost children and second, their best interest should be the leading principle of any action that concerns them.’
The European Committee on Social Rights oversees the application of the European Social Charter. According to Petros Stangos, Vice-President of the Committee, it is ‘ the only European jurisdictional body that [has] so far incisively ruled on fundamental social rights violations – such as the right to protection against homelessness, the right to health and the right to education – committed by European countries against the children we are worrying about here.’
The Committee has issued key decisions on the social rights of undocumented children and has found that certain rights are so linked to human dignity that it would be contrary to the Charter, a human rights instrument, to deny these rights due to residence status. The Committee has found, in four separate cases so far, that governments should ensure rights of undocumented children on their territories. There were ‘four decisions adopted between 2004 and 2012 following European NGOs’ complaints against some European states (France twice, the Netherlands and Belgium)’ says Stangos.
Children are still detained throughout Europe for immigration reasons despite detention being a direct violation of the Convention of the Rights of the Child (CRC) which has been ratified by all EU member states and thus entails legal obligations for these countries.
Drawing on good practice examples, panelists at the hearing emphasized that the EU should end the immigration detention of children and follow the Committee on the Rights of the Child’s recommendations that it is never in the best interests of the child to be detained.
Organizations and EU policymakers participating in yesterday’s debate stressed that access to justice should never be denied to children because of their or their parents’ residence status. The key recommendation is to clearly separate immigration control from access to services, protection and justice, including the prohibition to share personal information between service providers and immigration authorities. The European Union Agency for Fundamental Rights (FRA) has developed guidelines for EU member states to enable undocumented migrants to access services such as medical care and education without fearing immigration control.
Participants concluded that the EU needs to urgently address the protection gaps in its existing legislation and policy to ensure that children’s rights are properly considered and guaranteed in all decisions affecting undocumented migrant children. They also agreed that the EU needs to promote greater awareness and exchange of positive measures that guarantee the protection of their rights, as children first and foremost.
PICUM has put together a toolkit: Children First and Foremost: A guide to realizing the rights of children and families in an irregular migration situation. It is available in English, Italian, Dutch, French and Spanish and is the outcome of PICUM’s two-year project ‘Building Strategies to Improve the Protection of Undocumented Children in Europe’.
Watch a documentary showing the realities of undocumented migrant children and their families in Europe.
PICUM is an international NGO that promotes respect for the human rights of undocumented migrants within Europe.
Michele LeVoy is the director of PICUM.