Unaccompanied migrant children under international and EU law: the slow emersion of a dedicated legal framework

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Abbreviations

(UNAG) United Nations Assembly General (BID) Best Interest Determination

(CAT) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

(HRC) Human Rights Committee

(CEDAW) Convention on the Elimination of All Forms of Discrimination against Women

(CETS) Council of Europe Treaty Series (CJEU) Court of Justice of the European Union

(CPT) European Committee on the Prevention of Torture (Committee CRC) The Committee on the Rights of the Child (CoE) Council of Europe

(CRC) UN Convention on the Rights of the Child (EASO) European Asylum Support Office (ECHR) European Convention on Human Rights (ECtHR) European Court on Human Rights (EFTA) European Free Trade Association (EU) European Union

(EURODAC) European Dactyloscopie (EUROPOL) European Police

(EUTS) European Union Treaty Series (ESC) European Social Charter

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6 (ESCr) European Social Charter Revised

(FRA) Fundamental Rights Agency

(FRONTEX) European Border and Coast Guard Agency (GCs) General Comments

(GRETA) Group of Experts on Action against Trafficking of Human Being (ICCPR) International Covenant on Civil and Political Rights

(ICESCR) International Covenant on Economic, Social and Cultural Rights (ICPRMW) International Convention on the Protection on the Rights of All Migrant Workers and Members of Their Families

(IDP) Internally Displaced Person (ILO) International Labour Organization

(INGO) International Non-Governmental Organization (IOM) International Organization for Migration

(LN) League of Nations (MS) Member States

(NGO) Non-Governmental Organization

(PICUM) Platform for International Cooperation on Undocumented Migrants (SCEP) Separated Children in Europe Programme

(OAS) Organization of American States (OJ) Office Journal of the European Union

(OHCHR) Office of the High Commissioner on Human Rights (UNSC) United Nations Security Council

(UNTS) United Nations Treaty Series (SGBV) Sexual and Gender Based Violence (SIS) Schengen Information System

(SPRAR) The Protection System for Asylum Seekers and Refugees (TFEU) Treaty on the Functioning of the European Union

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7 (TEU) Treaty on the European Union

(The Commission) Commission of the European Union (The Council) Council of the European Union

(UAMs) Unaccompanied minors

(UASC) Unaccompanied or separated children (UDHR) Universal Declaration on Human Rights (UN) United Nations

(UNHCR) United Nations High Commissioner for Refugees (OHCHR) United Nations High Commissioner for Human Rights (UNICEF) United Nations Children’s Fund

(URMs) Unaccompanied Refugee Minors (VIS) Visa Information System

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Introduction

Each human being is entitled to have rights, ignoring from which part of the world comes from, the economic status or the age; this statement, could be considered as the core part of the typical theory of human rights and of the forth-coming evolution of international traditional law, also recognised and granted nowadays through International and Regional Conventions.

The gradual constitution of documents that safeguard universally the rights of human beings, arose from the claim of a series of fundamental freedoms that before were precluded by large sections of the population. These efforts on international scale, led to a framing and evolution of four generation on human rights. The recipients of civil and political rights, economic, social and cultural rights, as rights of solidarity and new generation rights, were identified for the totality of people also gradually new subjects of law such as children and not only some selected individuals.

After that brief glimpse on the rise and acknowledgment of human rights through the years, is required an introductive evaluation of the effect of human rights in relation to the rights of aliens and migrants.

Before further discussing, it seems appropriate to recall the principle of the "minimum standard" for the correct treatment of an alien in every civilized State. Therefore, every State has still the freedom to determine most aspects of the admission and the departure normative of a stranger in its territory. Nowadays, a person who migrates is no more seen as an extension of the State of origin but conceived as a subject to protect and respect under international law and every infringement is defined as damage to a person's rights in particular when is referred to vulnerable persons.

After carrying out the said identification, it seems evident that States still have a high level of a "domaine réservé" of the proper jurisdiction, refractory to amend,

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9 modify or abandon intern rules on the treatment of strangers. Under some circumstances, where the State’s conduct is outrageous causing damage to rights of individuals, their protection is considered under the international customary law or international conventions.

In recent years, it is noteworthy that two effects are taking place in consideration and treatment of aliens and their human rights: the “effect of substitution” and the “effect of transformation”; the first, as a progressive orientation for expansion of human rights in gradual substitution of the normative on treatment of aliens, forward the second, consists in protecting human rights of an individual as a human being regulated by international law.

However, the great attempt to establish an international juridical system, as also the effort of the theory of human rights to thrive into communitarian and State’s intern legal system, leading to respect, indiscriminate protection for the dignity and needs of individuals and migrants, some open questions remain yet a Pandora’s box.

Immigrant movements from poorer to wealthier states have been ever since debated and find historically oppositions, as a result the contemporary population movements led to concerns on citizenship, immigration status, resettlement patterns and suitable policies especially when dealing with children migration flows. This phenomenon is not recent but the attempt is to notice in recent years, that immigration and receiving countries, have seen an increase in the number of unaccompanied minors. Indeed, the amount of minors who migrate, particularly those who do so separated, increased significantly in the past 7 years.

Migration towards Europe begun during the years 2008-2010 but the year 2015 figured out a never-ending crisis, when the 30 percent of more than 1 million people who applied for asylum in the EU Member States were children. Journal headlines, front-page images of children got on the shores of Europe through boats, youngsters males barely adolescents trespassing barbed wires from Serbia to Hungary or those who sitting idle in camps in northern Greece have become the new “European everyday life normality”. The shocking factor is that when the piece of news of the moment has passed very little has been outlined about the causes that brought unaccompanied children to leave their homes or what happened once they moved on and tried to rebuild a life across EU's borders. Professionals and networks linked and

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10 working with these categories are raising the alarm not to burry away to turn the page on their emergency condition. Most of these minors are being denied basic and fundamental rights such as health, education, freedom from violence and cares within a family. The worrisome is that effects and consequences could be potentially negative for Europe’s future.

- First Vice-President Frans Timmermans said:

"The number of children arriving in the EU with or without their families has increased dramatically. We need to make sure that children who need protection actually receive it. And we need to do it now. This is our moral duty as well as our legal responsibility. Children should be our top priority as they are the most vulnerable, especially when they have nobody to guide them".1

During the period 2008-2013 the number of unaccompanied minors in Europe was high (from 11000-13000), while in 2014, it almost doubled and in 2015 the number of children asylum seekers applying for international protection inside European Union, quadruplicated. Most of unaccompanied minors were males, aged between 16 to 17 years old, as were also present in high numbers those of 14 and 15 years old, while those having less than 14 years old were less but not absent. Afghans represented the most numerous citizenship of asylum seekers considered unaccompanied minors, in continuity the second country was Syria.

Worldwide the EU accounted for almost a quarter of all asylum applicants in 2015. In order to comprehend the grave risk that they embrace when fleeing away alone, some statistics information of Save the Children reported that more than 4 270 children arrived only in June 2015, 86 of them were unaccompanied or separated. The awesome data is that the same year 12 300 unaccompanied minors passed through the Greek borders2_{in order to enter Europe.}_{But not only the presence of} UAMs in migration journeys increased, also the numbers of separated minors on the total number of migrants grew considerably, from 7.7% in 2014 to 14.2% in 2016,

1_{European Commission Press Realeas, Protecting all children in migration: Commission outlines}

priority actions, or http://europa.eu accessed on 12/01/2018.

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11 with comparison to a reduction in the number of minors migrating with their family, from 7.7% in 2014 to 1.3% in 2016.

In the context of migration crisis, in 2016, alongside with the entry into force of the EU-Turkey Statement on relocation of migrants in March 20163_{and the EU} Commission proposal to halt Dublin transfers to Greece4_{, were observed numbers} such as 1 156 unaccompanied minors stalled in Greece and these produced an increment of 300% in comparison of the same period of the previous year. The percentage of unaccompanied minors increased in recent years, in 2015 they accounted for 75% of the 16,500 children who landed in the coastal states of EU, whilst in 2016 they were 91.6% and finally in the first half of 2017, 93.2%, facing an individual migration, mainly from the African continent.

In this emergency, individuals, mostly unattached minors were often deprived of their dignity, neglecting their basic needs and unconscious of their human rights. Precisely the just mentioned wide percentages of children who had no one to take care of them, speak out loud for their failings, were exposed to high risks of violence, trafficking or exploitation along migration routes as not provided of any protection required.

In general, one out of these four key reasons induce minors to abandon their home countries: economic motivations, family reunification, education and joining a Diaspora community. Alike, children fleeing from internal wars in their country of origin, from international conflicts, from natural disasters or starvation and poverty, from persecution and perpetuation of gross violations of their rights or even those who want to grab a chance to better education, are those who try to reach desperately some European MS.

Often juveniles without familiars, from whom are separated during their journey, or unattached from the beginning are extremely vulnerable, and at some point find themselves devoid from aid, care, adequate treatment and respect for their rights.

Reality in words gives proof of the current situation, during the journey or the arrival:

3_{Doc. COM (2016) 144/16, 18.3.2016.} 4_{Doc. COM (2016) 791, 8.12.2016.}

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12 “Smugglers and traffickers hang out outside the shelters and wait for children. Children don't stay at the shelters or camps for a long time. They choose to follow them and we are left in the dark”.5

Athina Kammenou, Greece

“A recent study underlined that 23.2% of the unaccompanied children registered in Italy are at the moment unreachable”.6

Francesco Salvatore, Italy

“Unaccompanied children often face discrimination in Austria. Austrian children deprived of parental care grow up in small group homes which have a capacity of up to 8-10children; whereas unaccompanied children grow up in institutions which have a capacity of up to 50 children”.7

Stefan Bauer, Austria

“Behind the right to education and access to school lies the sense of “normality” which has to do with their right to go to school, have friends, play or do activities. Also, this school time protects children from exploitation, trafficking or prostitution”. 8

Roland Biache, France

It goes without saying, that children must receive protection and require from institutions and States to fulfil their obligations in order to accomplish their rights independently from their status of regularity or irregularity and where they found themselves.

5_{Eurochild, World Refugee Day: Child rights professionals share their stories, or}

http://www.eurochild.org accessed on 12/01/2018.

6_{See note 17.} 7_{See note 17.} 8_{See note 17.}

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13 In April 12th_{of 2017, a press release}9_{of the European Commission tried to make} the point of the situation over the past two years, of the growing number of unaccompanied children in migration that arrived in Europe. In brief explanation the position of the Commission, argued that EU and Member State’s legislation provide a solid framework for protection, but in the meanwhile the surge of arrivals put under serious pressure national legal and administrative systems and exposed to gaps and shortcomings.

With considerable regard to this issue, this contribution will attribute importance to the recent phenomena of the large number of unaccompanied minor migrants entering Europe due to the recent crisis in the Mediterranean basin. Since this requires an accurate assessment of the regime of their protection based on International Conventions, EU and Immigration law, this work will focus on the already existing normative on unaccompanied minor migrants and the gaps on protection, or the shortage created by the abstractedness of rules. The dissertation will inform of the existence of the bodies, agencies or NGO’s that take care of unaccompanied minor migrants, refugees or irregulars and if they adopted specific policy or programmes oriented on helping unaccompanied children. This text will highlight if there are some good practises turned to unaccompanied minors migrants and if these produced juridical effects upon their rights. Forehead, it will analyse if there had been bad practices reiterated through years that suffocated the rights of unaccompanied children in Member States. With the appropriate attention will take into account the verge of legality, condemning the practice of smuggling and trafficking gaining profit from this vulnerable category. Lastly trying to outline some innovative comprehensive strategy for the best interest of the unaccompanied minor irregular migrants or refugee and estimate some new terms for a more feasible and less complex discipline.

In other terms, given the great interconnection between international public and private law under this issue, no aspects would be argued, that concern and reveal a regulation under private law. From this point of view, the elaborate will treat only regulations, provisions and measures that concern the international public law on

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14 unaccompanied minor migrants. Lastly underlining and clarifying that the discipline on unaccompanied minor migrants is an issue constantly evolving and changeling, due to political changes in Europe, institutional bureaucratic administration and juridical-doctrinal trend to productivity, so the description appointed will present the facts until the end of 2017.

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Chapter I - An especially vulnerable category

1. Definition of Unaccompanied Minor

A particular group that caught the attention of citizens, policy makers and sector experts, in migration receiving countries, is minors; in part related to the growing visibility, both like members of migrant families and as alone protagonists in their migration journey. A significant aspect of their experiences is that they do not always migrate as part of a family unit but often migrate on their own volition.

To define this category in an inclusive way, it must be considered: minors without EU citizenships present in a Member State without parents or other legal guardians, and not applying for asylum, minors with an EU Member State citizenship but identified not in their home country without parents or other legal guardians, minors who have applied for international protection and are considered by the State’s national authority.

Given that multiple disciplines study this group of individuals, nomenclature is often disputed, on the definition of unaccompanied migrant minors, terminologically clarity and consistency is important. The terms “child”-“minor”-“youth”-“adolescent”-“toddler”-“children”-“juvenile”, are used all to refer to an individual who is under the age of 18, not yet in legal majority age. Forward, the word “unaccompanied” indicate their status as unattached person, strictly in a social sense but not emotional, psychological, to any parent, or adult caregiver or deprived of guardianship. So, in some generic sense an “unaccompanied minor”, could be defined as an underage individual who migrate without parents that can be categorized in many ways. Each categorization reflects policies and political positions of receiving or transit countries regarding this phenomenon and triggers actual policy responses, including legal frames of action based on the technicalities of the definition used. Very often the terminology used for identifying these children is: juvenile aliens, separated minors, juvenile asylum seekers and/or refugee children,

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16 unaccompanied immigrant children, unaccompanied alien children, unaccompanied juveniles aliens, refugee children, and asylum children seekers. At this point, it is worth underlining that not all the precedent uses are internationally recognized as formally correct, some of them have negative acceptation influenced by politic issues or other are charitable for journalist purposes on presenting the phenomenon.

Recalling the legal definition of UNHCR10_{: “An unaccompanied child is a person} who is under the age of eighteen, unless, under the law applicable to the child, majority is, attained earlier and who is “separated from both parents and is not being cared for by an adult who by law or custom has responsibility to do so”. It is comprehensible how the choice of nomenclature combined with aspects of generality, abstractedness and neutral orientation formed the legal character of terminology. It is proper to highlight on this outstanding document of the UNHCR, Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum11_{, that illustrates the definition of unaccompanied minor even if a} minor is accompanied but not by a familiar or parental member, engraving in Annex II that:

 (1): “In many cases the child will be accompanied by an adult caregiver who may or may not be a relative of the child. In order to determine whether or not a child is considered unaccompanied, the following specific but non-exhaustive guidelines may assist in identifying and measuring the quality of the relationship between a child and a potential principal caregiver”.

 (2): “Where a child is not with his/her parents in the first asylum country, then s/he will be, prima facie, unaccompanied”.

 (5): “Where a child is accompanied by an adult caregiver, the quality and durability of the relationship between the child and the caregiver must be evaluated to decide whether the presumption of “unaccompanied status” should be set aside. If, on evaluation of the

10_{Office of UNHCR, United Nations High Commissioner on Refugees, Guidelines on Policies and}

Procedures in dealing with Unaccompanied Children Seeking Asylum, February 1997.

11_{Office of UNHCR, United Nations High Commissioner on Refugees, Guidelines on Policies and}

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17 nature of the relationship between the child and the caregiver, it is concluded that the child is not unaccompanied, then the child’s case may be processed for refugee status under the regular status determination procedures with the adult caregiver according to the principle of family unity”.

In order to reinforce the previous comprehensive legal frame, within that of the European normative, we must call upon another institutional definition, as defined by the Directive 2011/95/UE12_,_{explicated in two points:}

 (k): “-minor- means a third-country national or stateless person below the age of 18 years”

 (l): “-unaccompanied minor- means a minor who arrives on the territory of the Member States unaccompanied by an adult responsible for him or her whether by law or by the practice of the Member State concerned, and for as long as he or she is not effectively taken into the care of such a person; it includes a minor who is left unaccompanied after he or she has entered the territory of the Member States”

.

However, despite those definitions given above, is also meaningful to considerate some other terms supplied, interchangeably, when talking about unaccompanied minors. Terms that by putting them beside have the task to outline the juridical status or condition, either during transit situation or in the receiving country.

2. Unaccompanied Alien Children

The term “alien” or “stranger” refers to a person that we do not know, someone who is not familiar or belonging to the same homeland. Habitually, the legal

12_{Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on}

standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted.

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18 definition is given through negative meaning, to express someone who lacks of the requirement of legal recognition in a country different from the proper. The historical roots ascend back in time and the juridical accreditation is maintained until nowadays with some adjustments.

Unaccompanied minor migrants are considered aliens, with prevalence in the country of transit and making no exception for the receiving country. Most of the times, unaccompanied alien minors, suffer from a harrowing and unpredictable situation, often after their arrival placed in detention centres not provided with legal representation, tutor or legal guardian into inadequate facilities. In the attempt to demonstrate effective proofs, that they left their country of origin due to probable persecution or natural disaster, they are intended to remain in a situation of limbo. If their case is deemed to have merit, then based on their qualifications they can advance to another legal status, combined with a new terminology. Given the aforementioned definition, the universe of the UAMs is composed by different subgroups.

3. Unaccompanied refugee minor

Refugee groups have been the focus of researches from over 70 years, and much of the knowledge of today can be taught from the outcomes of an earlier study. Most of the study on refugees and refugee camps was done after World War II, but the main effort on theorizing was developed by Kunz’s article13_{, entitled “Exile and} resettlement: Refugee Theory”14_{(1981). Since that time the word and definition,} influenced and treated by many disciplines in different views, has been examined and re-examined, dissected and divided by meaning. In literature, there was a lack of

13_{This article extends the analysis of factors affecting refugee outcomes to those areas preceding and}

succeeding flight. Thus, although the refugee situations may appear unique, the study and analysis of recurring elements offer explanations of the events actually observed and enable one to predict the course which future events may take.

14_{Kunz E.F., “Exile and Resettlement: Refugee Theory”, Journal article in The International}

Migration Review, Vol. 15, No. 1/2, Refugees Today (Spring - Summer, 1981), pp. 42-51, Published by Center for Migration Studies of New York, Inc.

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19 organization and focused concern on policy making, until recent times when through Geneva Convention15_{was brought interest for that group of people, framing them} under legal status and proceeding in line of law evolution under an umbrella of protection.

Noting the fact that most of unaccompanied minors entering Europe are children who flew away from internal conflicts and wars, from fear of persecution, the right term for defining them after receiving the status, is “refugee” under Geneva Convention, stating in art.1 paragraph 2 that: “As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return it. In the case of a person who has more than one nationality, the term –the country of his nationality- shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself for the protection of one of the countries of which he is a national”.

Worth mentioning among this agreements also the efforts of the EU disposals on the issues of defining, regulating and releasing, refugee status. The Directive 2011/95/EU, both indicates the term of Geneva Convention for qualifying a refugee, as also supplies a more detailed definition, constituting in art.2 paragraphs:

 (d): “-refugee- means a third-country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned

15_{The Convention Relating to the Status of Refugees, also known as the 1951 Refugee Convention, is}

a United Nations multilateral treaty that defines who is a refugee, and sets out the rights of individuals who are granted asylum and the responsibilities of nations that grant asylum.

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20 above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply;”

 (e): “-refugee status- means the recognition by a Member State of a third-country national or a stateless person as a refugee;”

It is important to note the hint of article 1216_{of the Directive that excludes the} assignment of the status, to people who are assigned of diplomatic protection, have been entitled with the nationality of the receiving country or have committed crimes against peace or against the first two principles of the Preamble of the Charter of the United Nations.

Furthermore included in article 31, which will be explained in a following related chapter, the European Directive contains some comprehensive disposals with due regard to the situation of unaccompanied minors that are assigned the status of refugee.

4. Asylum seekers

A diverse mode of passing borders and entering European frontiers, as unaccompanied alien minors use to do, is through the practice of asylum seeking.

16_{A third-country national or a stateless person is excluded from being a refugee if:}

(a) “he or she falls within the scope of Article 1(D) of the Geneva Convention, relating to protection or assistance from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees. When such protection or assistance has ceased for any reason, without the position of such persons being definitely settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, those persons shall ipso facto be entitled to the benefits of this Directive; (b) he or she is recognised by the competent authorities of the country in which he or she has taken up residence as having the rights and obligations which are attached to the possession of the nationality of that country, or rights and obligations equivalent to those”.

2. A third-country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that:

(a) “he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes”; (b) “he or she has committed a serious non-political crime outside the country of refuge prior to his or her residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes”; (c) “he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations”.

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21 Frequently this way blossoms to illegality, at risk of any identification process of the entrance of that person as minors try to reach a third country of their preference with any means. The terms refugee and asylum seekers are often used as synonyms in literature or in journalism, but indeed, when they deal with legal definition or juridical conditions the terms make a clear distinction. Children who are asylum seekers assume at times, by the social construct of population or from political opinions, an aspect of passive victims turned into possible future elements of disturb and criminalisation. Whilst the analysis of the term refugee has been done before, the definition for asylum seeker can lead to an individual on the move who tries to find a third country that corresponds to personal expectation for turning to be an asylum applicant and willing to receive the status. More precisely the Directive 2011/95/EU defines in art.2 paragraphs:

 (h): “-application for international protection- means a request made by a third-country national or a stateless person for protection from a Member State, who can be understood to seek refugee status or subsidiary protection status, and who does not explicitly request another kind of protection, outside the scope of this Directive, that can be applied for separately”;

 (i): “-applicant- means a third-country national or a stateless person who has made an application for international protection in respect of which a final decision has not yet been taken”;

Sometimes between adult people, this phenomenon can conduce to the effect of “asylum shopping” but in the cases of unaccompanied minors, this trend of search in orbit induces to great numbers of unprotected children grabbed from delinquency and illegality net.

5. A brief look at some non-legal literature on unaccompanied minors

The purpose of resuming some literature is for a better comprehension of the aspects that involve lives of UAMs who flee from their homes or find themselves alone stranded in a third country. Literature often contribute for taking into

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22 consideration under a juridical aspect core issues that must be examined and granted or are already established, even factors for which should be considered an amelioration perspective.

Literature gives enough food for thought, in particular way as regards the three basic migrant phases: pre-migration, migration process and post-migration. The first phase tends to present the abandon of proper homes and lands as a trauma caused by war, internal or international conflict, natural disasters, poverty, malnutrition, lack of work and education, while the second one is keen on all legal aspects concerning the journey, first entrance to a State and the status of regularity or irregularity. The post-migration phase exposes important factors on the new social context of permanency, conditions of living, loss of roots and family bonds, mental and physical health, risks, acculturation, discrimination, racism, integration, appropriate housing conditions, social care, protection of rights. During the pre-immigration phase, there are relevant researches concerning adolescents identifying in prevalence war trauma and separation trauma. Instead, for toddlers the trauma caused by the experience between life and death, insanity and abandon. In the migration phase, the concern for youngsters are not the juridical aspects, as sometimes they are illiterate or even very little for reading, but achieving in their goal of passing the maritime or terrestrial frontier. Consequently, the last phase of post-migration characterized for the presence of illegal unaccompanied minor migrants, because quiet all of them enter a third State’s territory with non-transparent methods. In fewer cases, there is also an accurate perspective related to the attempt to escape from their homelands in order to share an economic prospect in contrast with the situation of extreme poverty danger or abuse. Other factors, such these of identity development, security, mental and physical sanity, education, living conditions, social care system, parental/tutorial presence, integration, juridical framing, religion and cultural knowledge, psychological outcomes, resilience; that influence, besides, the post-migration phase of unaccompanied minor migrants.

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23 As Gilligan, (2010)17_{, highlights, most of the studies spot out unaccompanied} refugee minors as severely vulnerable, emotionally stressed, traumatized, subjects highly at risk, often overlooking their force on resisting to hardship and adversities. Additionally, little infants obliged to face desperate circumstances, rarely understanding another language due to the low level of education or of the early age. In many cases, suffering from disease based on the conditions of long journey, or weakened through their exploitation and victimization.

As Piaget18₍₁₉₅₄₎19_{also says, the emotional and intellectual growth of a minor} comes around the age of 6-7 years old. In order to give minors the means to achieve that goal and develop ahead their personality, there must be a solid structure of familiar bonds, health care services, social assistance, educational structures, and a solid administrative and juridical frame protecting and enhancing their needs. Many authors pointed out the difficult process of adaptation behaviour in new societies, through explanation of different cultural, social, political, geographical, economical, lingual, and no-common values backgrounds. Every process of integration and assimilation becomes harsher in lack of guidance; marginalization and discrimination create a momentum of loss on protection of human capital. In summary the effort of protecting and integrating UAMs through the creation of bridges of legality in the host territory, is a way of preserving childhood from an upcoming depressive, destabilizing situation that leads to poverty, illness and crime. The key element for understanding the condition and needs of UAM is an accurate differentiation between origin, age, gender, race, class and a deeper comprehension on their emotional status, which could be the turning point for a better support on their treatment and suggest successful protective forms.

Ever since a conflict bursts, refugees are forced to consider the alternatives between danger and persecution in their homelands, or a safer life usually with low effective protection guarantees, discrimination and deprivation of individual or social

17_{M. Ní Raghallaigh, R. Gilligan, “Active survival in the lives of unaccompanied minors: coping}

strategies, resilience, and the relevance of religion”, Child & Family Social Work 15 (2), Blackwell Publishing Ltd, pp. 226-237.

18_{Jean Piaget (9 August 1896 – 16 September 1980) was a Swiss clinical psychologist known for his}

pioneering work in child development.

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24 identity, far from their native territory. Forced migration, including also economic migration is frequently divided in two groups, Kunz (1973)20_{describes well the two} Kinetic models, the anticipatory refugees and the acute refugee21_{: the first one often} composed from regular migrants, because of the choice to leave voluntarily, preparing themselves in time, gathering resources and selecting a destination in line with their needs and expectations. The other group, more subjected to political destabilization and crisis or war, formed from people who leave without having prepared themselves, in order to escape quickly from a difficult situation that probably will sharpen. Frequently, in literature, the exact surroundings of forced migration are not explicit so sometimes are given interpretations and comparisons of things that could not be comparable; such as a natural disaster that leads to starvation and lack of home facilities interpreted as a political bad gesture of resources, forcing to consider refugees wrongly as economic migrants.

Substantially, literature contributes to demonstrate that URM meet the criteria of the acute group, under a war conflict or natural disaster where are the mostly exposed on loosing parents or familiars due to death or to extreme circumstances. This specific category of children are on the front line for abduction, facing exploitation, victimisation and human trafficking caused by the absence of a tutor or someone who can take care of them.

6. Actual situation of minors according to specialized international bodies 6.1 UNICEF & UNHCR annual reports

UNICEF testifies that in October of 2016 unmarried alien minors asylum applicants were 4 168, (48.3%) of the minors either accompanied or not, represented by the 4.2% of the total number of asylum seekers. An obvious increase for international protection of unaccompanied minors has been noticed in Italy in 2014,

20_{Kunz, Egon Francis, Refugee theory, (1970 – 1980).}

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25 (+211.2%), followed by a further peak (+ 62.5%) the following year, in 2015. With reference to the main countries of citizenship, leaving out the Afghans, UNICEF signalled a modest increase for unaccompanied minors who come from Senegal, Ivory Coast, Ghana and Guinea. Unaccompanied minors seeking asylum and those who hold international and humanitarian protection have access to the facilities and services of the System of Protection for Asylum Seekers and Refugees (SPRAR)22_, which is spreading periodically information available on the numbers and main features of the beneficiaries.

On an updated report23_{of the 31}st_{of May 2015, it was stated that at that date were} welcomed within the structures of the SPRAR, 1 101 unaccompanied alien minors through asylum seeking. Most of them located in Sicily and in smaller quantity in Calabria and Puglia, which are three most affected regions of arrivals by sea. If, on one hand, this distribution could be redirected the need for reception facilities near the landing sites, it nevertheless points to an unbalanced territorial distribution of places towards the costal territories. The sharp increase of arrivals produced obviously an increase to the also affected SPRAR system.

Furthermore, information about unaccompanied minors asylum non-applicants reveal that between 17 245 present in the reception facilities the 72.6% are unidentified in Italian territory and the rest 27.4% are unavailable. In this case even thought, the 93% of presences remain masculine, as far as the female component is concerned, a slight increase was observed.

According to UNICEF, it is not uncommon for unaccompanied foreign minors once identified becoming unavailable, that because, they can no longer be traced in the structures they were welcomed. The phenomenon grows dramatically in numbers from 1 754 in 2012 to 6 508 at the end of November 2016. In percentage terms, they reached the maximum incidence to 34%, accounted on 27.4% of the totality present in the structures at the end November 2016. The tendency to be in a state of

22_{The Protection System for Asylum Seekers and Refugees (SPRAR) was created by Law No}

189/2002 and is made up within the available resources, the National Fund for Asylum Policies and Services, managed by the Ministry of the Interior and provided under the Government finance law.

23_{UN High Commissioner for Refugees (UNHCR), Safe & Sound: what States can do to ensure}

respect for the best interests of unaccompanied and separated children in Europe, October 2014, available at: http://www.refworld.org, accessed 12 January 2018.

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26 irreversibility is particularly evident among most of unaccompanied unavailable alien minor coming from specific African areas. By pronounce that many, lost their way on purpose, it is prefigured a precise strategy to continue the journey to other European countries of choice.

UNICEF also reports a deviance area related to unaccompanied minors motivated by evaluations of their vulnerability and hence the risk they may have becoming victims of criminal circuits, putting devious behaviours into action. It is important to pay attention on data from 2011 to 2015 showing an increasing number of unaccompanied alien minors that among the crimes committed there are, in particular, those related to drug trafficking, followed by those against patrimony.

In 2012, there were 149 unaccompanied minors within communities, which implement individualized re-educating programs, while in 2015 the presence was of 92 elements. It should be emphasized that since, these minors cannot be entrusted to in their own case it is unlikely to resort to alternative measures to detention. A possible consequence is a game of a vicious circle of deviance, since the application of alternative measures to detention can affect significantly the reduction of recidivism.

In line with UNICEF considerations, we ought to consider closer the serious risk of unaccompanied alien minors crossing the dangerous passage in the Central Mediterranean sea, from North Africa to Europe. This figure grows vertiginously, 92% of children reaching the shores, in the first two months of 2017 were unsuccessful. Millions of children move across international borders, fleeing away from violence and conflict, calamity or poverty, in search of a better life expectations. Hundreds of thousands travel alone, on little chance of safe and legal passes, children fold over dangerous routes profiting also of help from traffickers to cross the borders. The serious gaps in the norms, in policies and services for the protection of minors on move leave them without rightlessness and careless. In poverty, without protection and often alone, children can become easy preys to responses of traffickers or other individuals who could abuse of them. All specific motivations that encourage children to take the trip alone pass through social network. Often unaccompanied minor migrants are abandoned in overcrowded shelters or end up in shelter of fortune, left exposed to dangers of street life.

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27 Sometimes, compatriots force them to work under harsh conditions in exchange for shelter and food. The disinformation, the lack of confidence in the authorities and the fear of being detained and deported prevents children from looking for protection and support.

UNICEF advocates also against borders closures and aggressive rejection measures that can leave children separated from family or those unaccompanied blocked in countries where they do not want to be, are not welcomed or have few life perspectives. Being unable to go forward or to go back, they are trapped in a prolonged limbo that nourishes anxiety, despair and self-destruction, as has been documented among children in Greece. Some children escape to the authorities for fear of being held, living in the streets terrible conditions and sometimes prostituting or resorting to microcriminality to save and pay traffickers so that they can continue their journey. Yet, in practice, children’s rights are often violated because of their migrant status. The way they are treated varies from State to State and responsibility of taking care of them often falls too heavily on the poorest countries. Even these children who run away from violence and conflict often do not get the adequate protection they need, particularly when protection of refugees is reduced by law or practice. The current system fails to protect refugee and unaccompanied migrant children, States have the responsibility to defend their rights and protect all of them within their borders, without exceptions. According to a recent survey24_{of the} (IOM), more than 3/4rs of 1 600 children aged between 14-17 years old arrived in Italy via the Central Mediterranean route, reported that they have been held against their will or being forced to work without remuneration at some point in the trip. Traitors, and other types of exploiters, thrive especially where state institutions are weak, where organized crime abounds and where migrants remain stuck and desperate. States in difficulties with managing migratory flows and migratory policies, forget children. Wherever families or children, with a desperate need to move on meet obstacles, the traffic of human beings thrive.

24_{The IOM ITALY NEWSLETTER, Updates from the Coordination Office of the Mediterranean,}

Protecting children in the context of current migration to Europe, or http://www.italy.iom.int accessed 12/01/2018.

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28 As far as UNHCR is concerned, considers unacceptable manifestations of intolerance towards refugees, often minors, forced to flee from wars, torture and persecution. Reports 78 000 refugees in Italy and by way of comparison, both Germany and France host around 200 000 each, the United Kingdom 130 000, Sweden 120 000 and the Netherlands 75 000. Promoting the wrong perception that refugees enjoy privileges and are the cause of discomfort for citizens becomes dangerous as it falsifies reality and foments social tension. Even worst and shameful when this discomfort is addressed to vulnerable people such as unaccompanied minor refugees and turning them into scapegoats.

“The right to asylum is a sign of civilization and development and abdicating would have very serious consequences” 25

Laurens Jolles, UNHCR Representative for Southern Europe

UNHCR accounts a totality of 10 845 children in 2010, up to 12 225 in 2011 and 13 320 children in 2012 that claimed asylum in the EU and the EFTA countries of Iceland, Liechtenstein, Norway and Switzerland. In 2013, a quantity of 12 430 applications were lodged; these figures, however, represent only a fraction of the total number of unaccompanied and separated children who are outside their country of origin or habitual residence and are present in the EU and EFTA countries. In addition, refugee agency emphasizes the fact that unaccompanied and separated children do not register with the authorities either because they are unable or afraid to do so or because they have been advised by family members, peers or smugglers to keep on the move to another destination. Worryingly, others not able to contact authorities because are being controlled by their traffickers and are destined for sexual, labour or other exploitation in Europe. Most statistics are unlike to cover the exact data of unaccompanied or separated children because they do not apply for international protection or specialized procedures for child victims of trafficking. The issue of unaccompanied and separated children in Europe poses a complex problem

25_{UNHCR, ASYLUM IS A RIGHT: INCITING INTOLLERANCE AND MISINFORMATION IS}

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29 requiring government agencies to find new ways of working together in innovative constellation sand with new partners. A UNHCR-led transnational study documented the movements of children along a major transit route in the EU, Greece, Italy and France, and suggested addressing protection gaps through outreach in the areas of reception, counselling and referral. UNHCR in 2010, considered the shameful situation on receiving Afghan children arriving in Europe, so stressed the need to highlight the institution of BID procedures in industrialized countries leading the protection response, which generally have more developed child protection and asylum and immigration systems in place.

Finally, the UNHCR in the recent document “Mixed Migration Trends in Libya: Changing Dynamics and Protection Challenges, Evolution of the Journey and Situations of Refugees and Migrants in Southern Libya”, outlines the importance on providing direct assistance, especially in Southern Libya and to UAMs; in alignment with migration risk information campaigns and greater awareness and collaboration of the Libyan authorities26_{, due to the latest events of documented net of traffickers} and children exploitation27_.

6.2 The Council of Europe Expert Group on Trafficking (GRETA)

GRETA, a Council of Europe specialized body, accounts a recent effort, ahead of the World Day against Trafficking in Persons on the 30th_{of July}28_{. Within one of the} very few documents produced in 2017, in regard of the discouraging situation persistence, GRETA raises the alarm about the high prevalence of child trafficking in Europe. As to children numbers of human trafficking, based on data available, a

26_{The UN Refugee Agency – Impact – Marie-Cecile Darme and Tahar Benattia of Altai Consulting,}

“Mixed Migration Trends in Libya: Changing Dynamics and Protection Challenges”, Evolution of the Journey and Situations of Refugees and Migrants in Southern Libya, February 2017.

27_{Valtolina G.G., D’Odorico M., CROSSING ALONE THE MEDITERRANEAN SEA. SOME}

CRITICAL ISSUES ABOUT UNACCOMPANIED MINORS IN EUROPE, in REMHU, Rev. Interdiscip. Mobil. Hum., vol.25, no.51, Brasília, Sept./Dec, 2017.

28_{GRETA, List of Decisions, THB-GRETA(2017)LD30, 24 November 2017, or}_{https://rm.coe.int}

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30 quarter are victims subjected to trafficking for the purpose of sexual exploitation, labour exploitation, forced marriage and, increasingly, forced criminality.

The main warning documented by Greta, is that although the efforts and opinions of the Commission, several recent country evaluation reports highlight serious shortcomings in the response of States to the protection of children at risk of being trafficked and the provision of assistance to child victims of human trafficking.

Siobhán Mullally, President of GRETA stated:

“The risks faced by migrant and refugee children in Europe are very grave. Trafficking of children occurs en route to Europe, and internally within Europe. This is a humanitarian crisis. States must act urgently to respect, protect and fulfil the rights of all children, including migrant and refugee children”29_.

Likewise, there are children living in transit zones, towards borders and in camps, devoid of protection or assistance, with limited opportunities to integrate into host communities. Increasing restrictions on family reunification, delays in the appointment of guardians, and most of the times hostile political and social attitude to child migrants and refugees, create numerous difficulties for children. Especially unaccompanied minors seeking to escape the reaches of trafficking networks and accomplish a new life within the legal status and a lawful protection. GRETA stresses the importance of ensuring minors’ rights, and that carefully States’ international obligations are fully respected at European borders and in all immigration procedures, by maintaining a human-rights approach30_.

6.3 EASO evaluations

In 2016, almost 1.3 million applications for international protection were lodged in the EU, this was a 7 % decrease compared to 2015 when close to 1.4 million applications were deposited. The highest numbers of asylum applicants recorded

29_{National Network for Children, World Day against Trafficking in Persons, or}_{http://nmd.bg}

accessed on 12/01/2018.

30_{CoE, Dichiarazione in occasione della Giornata internazionale dei migranti, L’integrazione dei}

migranti è un’opportunità per il presente e per il futuro dell’Europa, 12/01/2017 or https://www.coe.it

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31 were citizens of Syria (26%), Afghanistan, Iraq, Pakistan and Nigeria. The main receiving countries were as told previously Germany, Italy, France, Greece and Austria. The crisis in Syria continued to be a key factor for the quantity of applications for international protection in the EU States. In 2016, more than 65 000 UAMs applied for international protection in EU, 37 % less than the previous year. Afghans pointed the highest rate with 37% of all UAM. Instead, for the first months of 2017, data show a decrease in the number of lodged applications for international protection compared to numbers reported during 2016, 2015 and second half of 2014. Although Syria remained the main, country of origin of applicants recorded in the EU between January and May 2017. Afghan nationals still accounted for the largest share among claimed unaccompanied minors when at the end of May, there were more than 595 000 cases awaiting decision at first instance, of which 59 % were pending for longer than six months.

6.4 EUROPOL and FRONTEX: combatting illegal flows and traffickers of unaccompanied minor migrants

EUROPOL identified some migrant smugglers relying on social media to advertise their services, a migrant smuggler’s post on his social media page advertised the following services:

“The cost of a package with travel from Turkey to Libya by air and onward sea journey from Libya to Italy costs USD 3,700. For the sea journey adults cost USD 1,000. Three children cost USD 500”.

Within the EU, migrant smuggling networks also use social media platforms to recruit drivers. EUROPOL notifies that migrant smugglers and irregular migrants to share information on developments, along migration routes, use some platforms including law enforcement activities, changes in asylum procedures, or unfavourable conditions in countries of destination. Migrant smugglers adopt pricing models in

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32 response to evolution of law and policies, such as increased border controls by charging higher prices for alternative and safer routes. In January 2016, 55% of the irregular migrants arriving in the EU were women and minors this represents an increase of 34% compared to 2015.

In several Member States, unaccompanied minors disappear from asylum or reception centres; in 2015, several networks involved both in migrant smuggling and in labour exploitation were dismantled in the EU.

An investigation into a Pakistani criminal network involved in the smuggling of Pakistani migrants to the EU revealed that the group’s activities were linked to labour exploitation. Upon arrival in the EU, the irregular migrants facilitated by this network were forced to work in restaurants owned by members of the criminal network in Spain.

According to EUROPOL, at least 10 000 refugee children are unaccounted after arriving on Europe shores31_{. In addition, many organisations have reported that the} chaotic situation at the EU-Balkans32_{borders has caused a high number of children} to be separated from their families. Data collected from a dedicated network of hotlines for missing children, which operate in 29 countries, reveals that unaccompanied migrant children as young as in the age of toddlers go missing. Sometimes UAMs go missing because they do not have the chance to apply or register in time, even they lack of appropriate information, they are discouraged by the length and complexity of the process, or because they are aware of having little chance of receiving protection by legal means.

EUROPOL states33_{that especially those of a young age, the unaccompanied are} mostly victimized. On the other hand EUROPOL faces the issue of the disappearance of an unaccompanied migrant child on how is tackled with successful strategies and prevention by 7 EU Member States (Italy, Cyprus, Greece, Spain, UK, Ireland and Belgium). Despite the high number of disappearances, it is very difficult to identify

31_{Missing Children Europe, Europol confirms the disappearance of 10,000 missing children in}

Europe, or http://missingchildreneurope.eu accessed on 12/01/2018.

32_{The record number of migrants arriving in Greece had a direct knock-on effect on the Western}

Balkan route, as the people who entered the EU in Greece tried to make their way via the former Yugoslav Republic of Macedonia, Serbia into Hungary and Croatia and then towards western Europe.

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33 police officers or, law enforcement agents, who have experience in cases of disappearances of unaccompanied migrant children. In the majority of cases missing unaccompanied children are not found, the staff has not attended a specific training on risk assessment and procedures related to missing children. Lack of human resources in reception centres and prompt responses lead to a structural deficiency of facilitations and less protection of vulnerabilities. Frequently the disappearance of an unaccompanied migrant child is not prioritised and is not given the same urgency and care that would be provided for citizens. Law enforcement officers expressed frustration to the limited amount of information available on the missing child, which would be the reason for a limited follow up of the case.

While FRONTEX concentrates on the exponential migratory flows that reaches Italy and other coastal European countries due to the crisis in the central Mediterranean area, caused by the ongoing internal conflict in Libya and Syria with the consequent collapse of the state system. The despair in particular of children was manipulated for creating profit also in this case. In this context, the use of crumbling means, unsuitable for navigation on the high seas and overloads has led to the repetition of ship wrecks very often dramatic with the death of hundreds and probably thousands of migrants. In particular, after the last 18th_{of April 2015 the} waters of Mediterranean were theatre, of the biggest disaster in recent history, with the sinking of a North Lebanon fishing vessel with over 800 migrants.

6.5 Save the Children: qualitative and quantitative data analysis with regard to unaccompanied children refugee flows

Save the Children, identifies the central Mediterranean passage as particularly dangerous for children from several migration routes. Conditions of insecurity, chaotic movements across borders as witnessed at internal borders of Europe, or detention can generate family separation. As noted earlier, family separation may act as a driver in children’s decision to undertake irregular migration to seek reunification with family members who have migrated earlier, especially in the absence of available, legal reunification processes. The lack of appropriate

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34 procedures and legal framework, in addition to recent restrictions to the possibilities of family reunification, are expected to force more children to take the dangerous irregular routes to enter the EU with the help of smugglers.

A documented case34_{of one 17 years old girl from Nigeria, who was trapped in} Libya for three months and sexually assaulted by her smuggler turned trafficker, as she attempted to travel alone to Italy, turned to lie, the offer of help and her expectations of a better future. Somehow, like this girl, other unaccompanied migrant minors undertake the same journey with the consequence of becoming trapped by smuggling networks in order to reduce their debts or end their own abuse, especially if they have been sexually exploited.

Save the Children provides Interpol estimation, which explicates that one in nine unaccompanied refugee and migrant children is unaccounted as missing, but the figures are far higher. Taking into account the example of Slovenia, more than 80% of unaccompanied children went missing from reception centres, while in Sweden up to 10 children are reported missing each week. In early 2016, 4 700 unaccompanied children were recorded as missing in Germany. In April 2016 it was reported that one third of the 420 unaccompanied minors in the Calais camp35_{in France, with} prevalence to Eritrean children, had gone missing since the French authorities demolished a section of the camp in March 2016. In January 2016, Europol warned that 10 000 vulnerable children had vanished after arriving in Europe over the past two years. Save the Children clarifies how children aged between 13-14 years were being enticed without paying anything and their respective families are extorted.

Other concerns noticed on protection included the tense relationship between the UAMs and the rest of the refugee community due to the segregated nature of the care set-up in both camps and the perception that the UAM unfairly receive more services and care than other children in the camps. Ong, Save the Children, would like to remind the issue of UASC who have crossed a border, which, necessitates a very

34_{Save the Children, Young and on the Move, Children and youth in mixed migration flows within}

and from the Horn of Africa, or www.regionalmms.org accessed on 12/01/2018.

35_{The Calais Jungle was a refugee and migrant encampment in the vicinity of Calais, France, in use}

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35 close international coordination for family tracing, best interests determination and reunification.

Al Jazeera demonstrated huge concern, on reporting and notifying the astonishing increase in numbers of unaccompanied child refugees globally, providing data on their entrance in Europe. The report shows that 92% of children and young people who reached Italy on boat between the beginning of 2016 and end of February 2017 travelled alone, compared to 75% in 2015. Al Jazeera further recalled what IOM said, on hundreds of African refugees and migrants passing through Libya that have been bought and sold in modern-day slave markets before being held for ransom or used as forced labour or sexual exploitation. Noticing that sometimes children on the move try to join their relatives who already reached prosperous countries whether other are orphans. Children's rights must not be limited by national boundaries, when conflicts, disasters take place. Abandonment, abuses and marginalization bring children to move, then their rights move with them.

7. High on the Agenda of the European Union

During 2014, the Commission published a communication regarding the year 2015, titled “A Decent Life for All: from vision to collective action”36_{stating the} already existing position of the EU, that a framework for development beyond 2015. In 2015, the Commission issued another communication, outlining its views on a new global partnership enhancing the underlying principles and main components and putting forward proposals on how EU and its Member States could contribute to the partnership37_{. A timely and heavily debated issue for policy coherence is} migration, evidence suggests that the movement of people from the poorest countries into Europe has become increasingly restricted.

36_{Angelo Baglio, Head of Unit European Commission DEVCO B2 Civil Society, Local Authorities,}

A Decent Life for All: from vision to collective action, or https://webgate.ec.europa.eu accessed on 12/01/2018.

37_{Cecilia Gregersen, James Mackie and Carmen Torres, Implementation of the 2030 Agenda in the}

European Union, Constructing an EU approach to Policy Coherence for Sustainable Development, No 197, or http://ecdpm.org accessed on 12/01/2018.

Unaccompanied migrant children under international and EU law: the slow emersion of a dedicated legal framework

Table of Contents

Abbreviations

Introduction

Chapter I - An especially vulnerable category

.