Time to act to ensure children’s rights in the EU’s migration policy

Brussels, 30 October 2015

Mr. Donald Tusk
President of the European Council
B-1048 Brussels

cc. Permanent Representative of Luxembourg, Ambassador Christian Braun
cc. Counsellor, Permanent Representation of Luxembourg, Mr. Pascal Schumacher
cc. All Permanent Representatives to the European Union
cc. Secretary General of the Council, Jeppe Tanholm-Mikkelsen
cc. President of the European Commission, Mr. Jean-Claude Juncker
cc. First Vice-President of the European Commission, Mr. Frans Timmermans
cc. High Representative of the Union for Foreign Affairs and Security Policy and Vice-President of the Commission, Ms. Federica Mogherini
cc. Commissioner for Migration, Home Affairs and Citizenship, Mr. Dimitris Avramopoulos
cc. Commissioner for Justice, Consumers and Gender Equality, Ms. Věra Jourová
cc. Head of the Cabinet of Mr. Tusk, Mr. Piotr Serafin

Dear European Heads of State or Government and Ministers of the Interior and Foreign Affairs,
Dear Mr. Tusk,

Significant numbers of children from third countries migrate to Europe, for a variety of reasons, travelling with their families, alone or separated from their family. Between January and August 2015 alone, 174,235children sought asylum in the European Union, representing one in four asylum seekers.[i] From January to September, tens of thousands of unaccompanied children arrived by sea.[ii] Comprehensive data on children that have not claimed asylum or are residing undocumented in the EU is lacking. As children and as migrants they face a number of risks, particularly when they are undocumented.

Over the past few months, several European Council as well as Justice and Home Affairs and Foreign Affairs Council meetings have been convened to discuss and develop immediate responses and policies to address the recent increase in migrants and refugees arriving to Europe. As 59 leading organisations[iii] in the fields of human rights, child rights, health and social inclusion, we are concerned by the lack of attention afforded to children’s rights in these policy discussions and developments.[iv]

All the policy decisions and practical developments are having – and will continue to have – a profound impact on the lives of children. The EU and its Member States need to ensure that their responses to the current situation properly address the specific needs, rights and risks that children face.

The current situation also demonstrates the necessity of implementing a rights-based approach to protect all migrant children, regardless of whether they are seeking asylum, are documented, undocumented, trafficked, accompanied or unaccompanied.

Children often move from category to category, and fall through the gaps in the protection framework.  Many of the children who have experienced situations of violence, insecurity, child-specific forms of persecution, and other human rights violations are not recognised as in need of international protection, or are only provided a status for a short period of time. Many of the children claiming asylum today, are likely to be undocumented in a few months or years. Many were first documented, but lost their status at a later stage, for example, if their parent lost their job or experienced domestic violence.[v] While many unaccompanied children migrate entirely independently, many do so to join family members already in Europe, and later reside regularly or irregularly with their family. 

Furthermore, as the Council has noted, ‘the EU Charter for Fundamental Rights and the United Nations Convention on the Rights of the Child, establish that children should be treated as such regardless of their migratory status, nationality or background’.[vi] Some children may have additional protection needs that should be met, but all children have equal rights, and must have their rights protected, as children first and foremost. No form of discrimination is acceptable or justifiable, whether taken by public authorities or private actors.

Yet, the current package of policies reinforces a very differentiated treatment of children. While essential avenues for protection are foreseen for some children, the increasing focus on detention and deportation, further investment in border control, and significantly reducing the number of people that can arrive to the EU’s borders through cooperation with third countries raises serious child rights concerns. All measures must be developed, implemented, evaluated and adapted to ensure compliance with child rights. It is the responsibility and duty of governments to respect, protect and fulfil the rights of every child.

We call on the EU and its member states to implement the following ten actions:

1. Consider children’s rights and views, and guarantee their best interests when making decisions, including on immigration and asylum applications and in any decision to move a child or family to another country. The best interests of the child must never be outweighed by migration and border control concerns.
2. Meet immediate humanitarian and reception needs, while also investing in systemic reform to ensure access to services in a sustainable way, and to facilitate integration.
3. Ensure that all children have non-discriminatory access to services, such as health care, including mental health, and education, and have adequate accommodation together with their family.
4. Ensure effective protection of all children from all forms of violence, abuse and exploitation and discrimination, including gender-based, and access to justice for acts of violence or other rights violations.[vii]
5. Ensure that no child is detained or subject to other punitive measures because of their or their parent’s residence or migration status.
6. Protect family unity when in the child’s best interests, including by ensuring that no child is separated from a parent by immigration-related detention.
7. Provide adequate search and rescue and humanitarian assistance to prevent all avoidable deaths, whether at sea or on land.
8. Provide regular and safe ways for children and their families to come to Europe to seek protection and join family members and open more rights-respecting avenues for work and study.
9. Ensure that all agreements with countries of origin and transit include child rights safeguards and pay particular attention to the needs and rights of children. Children and their families should not be returned to a country where there is a risk of human rights violation(non-refoulement).

10. Empower children to access justice, and have their views heard, including through providing information and access to legal representation in all proceedings that can affect their status, rights and freedoms.

Child rights and protection safeguards and impact assessments must be integrated in all migration-related policy and practice. The best interests of the child should always be a primary consideration in all policies, practices, decisions and procedures. While extending essential protection to some children, governments cannot detain, forcibly deport and deny essential services to others.

We urge Heads of Government and Ministers to develop and implement concrete measures towards a comprehensive and rights-based strategy ensuring effective protection for all children affected by migration[viii], including in the upcoming meetings at European level, in particular when discussing drivers for migration at the Valletta Summit on 11-12 November and the Justice and Home Affairs Council on 3-4 December and through its Council Conclusions.

We thank you in advance for consideration of our proposals,

Yours,