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Unaccompanied children in Europe: issues of arrival,
stay and return

Resolution 1810 (2011)1

1.       There
is a growing awareness of the need to tackle the problems
faced by unaccompanied migrant children arriving and remaining
in Europe. There may be up to 100 000 of them, although
little reliable data exists on their movement other than
statistics on asylum claims. These children, predominantly
boys of 14 to 17 years of age, arrive in Europe for multiple
and complex reasons. However, once in Europe, their chances of
protection and assistance vary fundamentally from one country
to another, which creates disparities in treatment and
different interpretations of the best interests of the child.
In many cases these children are in an extremely vulnerable
position and face abuse, neglect and can become victims of
trafficking and criminal networks.

2.       The
Parliamentary Assembly recalls that by virtue of the United
Nations Convention on the Rights of the Child, which all
member states of the Council of Europe have ratified, there
exists a special duty of protection and assistance to all
unaccompanied children, irrespective of their nationality,
immigration status or statelessness. The way in which
immigration and asylum rules affect these children must be
anchored in this obligation and perspective.

3.       The
Assembly has previously raised the above concerns in its
Recommendation 1596 (2003) and
Recommendation 1703 (2005) which called, inter
alia, for the recognition of the binding character of the
best interests of the child as a primary consideration in all
actions, the harmonisation of national laws on legal
guardianship, and the establishment of coherent and effective
protection regimes for children who are asylum seekers or
victims of trafficking. Regrettably, little progress has been
achieved in these fields.

4.       In
this regard, the Assembly commends the decision by the
European Union to make unaccompanied minors a priority policy
issue within its 2010–2014 Stockholm Programme and welcomes
the adoption of a European Union Action Plan on Unaccompanied
Minors. It nevertheless highlights the need for implementation
of the Action Plan to take place in a way that is fully
compliant with the United Nations Convention on the Rights of
the Child.

5.       The
Assembly believes that child protection rather than
immigration control should be the driving concern in how
countries engage with unaccompanied children. With this in
mind, the Assembly establishes the following set of fifteen
common principles, which it invites member states to observe
and work together to achieve:

5.1.
Unaccompanied children must be treated first and foremost as
children, not as migrants.

5.2.
The child’s best interests must be a primary consideration in
all actions regarding the child, regardless of the child’s
migration or residence status.

5.3.
No child should be denied access to the territory or
summarily deported at the borders of a member state.
Immediate referral to assistance and care should be
arranged by specialised services with a view to
identifying if he or she is a minor, ascertaining his or
her individual circumstances and protection needs and
ultimately identifying a durable solution in his or her
best interest.

5.4.
Child victims of human trafficking should benefit from special
arrangements in terms of identification, reception and
protection. These should be adapted to their needs and assure
their protection in line with the Council of Europe
Conventions on Action against Trafficking in Human Beings
(CETS No. 197) and on the Protection of Children against
Sexual Exploitation and Sexual Abuse (CETS No. 201).

5.5.
Every unaccompanied child
should be provided immediately with a guardian mandated to
safeguard the child’s best interest. The legal guardian should
be independent and should have the necessary expertise in the
field of childcare. Every guardian should undergo regular
training and be subject to regular and independent
review/monitoring.

5.6.
Legal, social and psychological assistance should be provided
without delay to unaccompanied children. Children should be
informed immediately upon arrival or interception,
individually and in a language and form that they can
understand, about their right to protection and assistance,
including their right to seek asylum or other forms of
international protection, and the necessary procedures and
their implications.

5.7.
All interviews with an unaccompanied child concerning his or
her personal details and background should be conducted
individually by specialised and well-trained staff and in the
presence of the child’s guardian.

5.8.
Access to asylum and international protection procedures must
be made unconditionally available to all unaccompanied
children. A harmonised child-sensitive asylum system needs to
be established, to include procedures that take into
consideration the additional difficulties children may have in
withstanding trauma and in expressing a coherent account of
their experiences and child-specific experiences of
persecution. Asylum applications by unaccompanied children
should be given priority and processed within the shortest
appropriate time frame, while allowing children sufficient
time to understand and prepare for the process. All
unaccompanied children in asylum proceedings must be
represented by a lawyer in addition to a guardian, provided
free of charge by the state and be able to challenge before a
court decisions regarding their protection claims.

5.9.
No detention of unaccompanied children on migration grounds
should be allowed. Detention should be replaced with
appropriate care arrangements, preferably foster care, with
living conditions suitable for children’s needs and for the
appropriate period of time. Where children are accommodated in
centres, they must be separated from adults.

5.10.
Age assessment should only be carried out if there are
reasonable doubts about a person being underage. The
assessment should be based on the presumption of minority,
involve a multidisciplinary evaluation by an independent
authority over a period of time and not be based exclusively
on medical assessment. Examinations should only be carried out
with the consent of the child or his or her guardian. They
should not be intrusive and should comply with medical ethical
standards. The margin of error of medical and other
examinations should be clearly indicated and taken into
account. If doubts remain that the person may be underage, he
or she should be granted the benefit of the doubt. Assessment
decisions should be subject to administrative or judicial
appeal.

5.11.
The child’s views should be heard and given due weight in all
relevant procedures, in accordance with his or her age and
maturity. Administrative and judicial procedures within member
states should be conceived and applied in a child friendly
manner.

5.12.
Finding a durable solution for the unaccompanied child
should be the ultimate goal from the first contact with him
or her. It should include family tracing if requested by the
child or his or her guardian and where it is safe to do so
and will not put family members in danger, and an
individualised best-interest assessment that looks at all
options for durable solutions on an equal basis. A durable
solution may be the child’s integration into the host
country, family reunification in a third country, or return
and reintegration in the country of origin. An individual
life project should be identified jointly by the
authorities, the legal guardian and the child concerned, and
monitored throughout the accomplishment of the project in
line with Committee of Ministers Recommendation
CM/Rec(2007)9. Pending identification of a durable solution,
the child should benefit from legal residence status in the
host country. This should be valid throughout the duration
of the child’s personal life project conducted in the host
country, even if the project extends to the age of
adulthood.

5.13.
Access to adequate accommodation, education, vocational
training and health care must be guaranteed to all
unaccompanied children, regardless of their migration status
and under the same conditions as to citizen children.
Moreover, unaccompanied children should be able to benefit
from comprehensive programmes of child welfare. These
should, where necessary, take into consideration their
emotional needs following traumatic experiences and should,
beyond the immediate psychological assistance to be provided
(see paragraph 5.6), comprise measures such as targeted
educational assistance, placement in foster families or
specialised residential care, or integration assistance for
children with disabilities.

5.14.
Family reunification possibilities should be extended beyond
the country of origin and approached from a humanitarian
perspective exploring wider family links in the host country
and third countries, guided by the principle of the child’s
best interest. The Dublin II Regulation should only be
applied to unaccompanied children if transfer to a third
country is in the child’s best interests.

5.15.
The best interests of the child should be taken into account
in all steps leading to the return of the child to his or
her country of origin. Return is not an option if it risks
leading to the violation of the child’s fundamental human
rights. If no parents or members of the extended family are
identified, return should only take place with advance
secure, concrete, and adequate care and reintegration
arrangements in the country of origin. Return to
institutional care should not in and of itself be viewed as
a durable solution. A professional child protection body
should conduct the assessment of return conditions. A
follow-up plan should be established in order to ascertain
that the protection of the child is guaranteed following the
return. Non rights-based arguments such as those relating to
general migration control, must not override best-interest
consideration in return decisions. Returns to countries
where the child’s security, protection – including against
refoulement – and welfare cannot be guaranteed, must
not be envisaged. Children in return proceedings must be
represented by lawyers in addition to guardians. They must
be granted access and the ability to challenge return
decisions before a court and their appeals must have
suspensive effect on the return.

6.       The
Assembly calls upon the European Union to, in particular:

6.1.
promote full implementation of the European Union Action
Plan on Unaccompanied Minors, in accordance with the
United Nations Convention on the Rights of the Child;

6.2.
consider proposing new legislative standards to close
existing protection gaps in European Union law for all
unaccompanied children, irrespective of whether they seek
asylum;

6.3.
establish a harmonised method for gathering relevant
information on unaccompanied children Europe-wide, to
enable an apt comparison at European level, while ensuring
that personal data is protected; support national
independent institutions capable of collecting the data
and creating a suitable resource centre regarding all
areas touching upon the situation of unaccompanied
children;

6.4.
adopt and implement common standards and procedural
safeguards on guardianship and legal aid for all
unaccompanied children to ensure their interests and
protection needs are safeguarded throughout all
administrative and judicial procedures;

6.5.
support the adoption of a common protocol for carrying out
age assessments in accordance with ethical, medical and
legal principles in order to balance the current divergent
approaches and practices;

6.6.
continue to work towards the creation of a harmonised
system of asylum for unaccompanied minors within the
framework of the revised Asylum Directive as well as a
harmonised system for assisting and protecting trafficked
children within the framework of the European Union asylum
and trafficking instruments which are currently under
revision; ensure that all European Union member states
comply with their obligations under European Union law
with regard to unaccompanied children;

6.7.
establish improved transnational mechanisms for dealing
with child protection concerns as unaccompanied children
move across Europe, including when they disappear from
reception centres;

6.8.
refrain from supporting or financing the construction of
reception facilities for the purpose of deporting children
to countries of origin which do not have proper
functioning child protection systems providing sufficient
safeguards and operating in a transparent fashion; ensure
that in no case would the existence of centres pre-empt a
case-by-case decision as to whether return is indeed in
the child’s best interest;

6.9.
reinforce support to countries of origin in their efforts
to promote child protection systems and life opportunities
for all children in order to reduce the risk of unsafe and
unnecessary migration;

6.10.
ensure co-operation with countries of origin on the
assessment of the child’s circumstances, with a view to
finding durable solutions for children on a case-by-case
basis;

6.11.
promote good practices throughout Europe on the return
process, including co-operation with third countries, to
ensure proper care and custodial arrangements and
reintegration support;

6.12.
ensure proper integration of unaccompanied children in the
host country where this has been considered in the child’s
best interest.

1 Assembly debate on 15 April
2011 (18th Sitting) (see Doc.
12539, report of the Committee on Migration, Refugees and
Population, rapporteur: Mrs Reps, and Doc.
12558, opinion of the Social, Health and Family Affairs
Committee, rapporteur: Ms Coleiro Preca). Text adopted by
the Assembly on 15 April 2011 (18th Sitting).

See also
Recommendation 1969 (2011).

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