Annexes to COM(2010)213 - Action Plan on Unaccompanied Minors (2010 - 2014) SEC(2010)534 - EU monitor

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Annexes to COM(2010)213 - Action Plan on Unaccompanied Minors (2010 - 2014) SEC(2010)534

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dossier COM(2010)213 - Action Plan on Unaccompanied Minors (2010 - 2014) SEC(2010)534.
document COM(2010)213 EN
date May  6, 2010
agreements with third countries, specific provisions addressing the migration of unaccompanied minors and enabling cooperation on issues such prevention, family tracing, return or reintegration.

The Fight against trafficking in human beings

The EU and Member States should:

- Reinforce actions regarding child victims of trafficking in human beings by assisting and protecting these children at the very earliest stage, by referring them to specific services in the country where they are found. Such assistance should at least include the measures provided for by the Directive on victims of trafficking in human beings[16].

- Reinforce the capacities of third countries to combat trafficking in human beings, as well as to protect and assist unaccompanied minors in accordance with the best interests of the child and international standards and conventions, regardless of their nationality.

- Implement the prevention measures of the Action-oriented paper on trafficking in human beings and support regional instruments against trafficking in human beings.

Visas and information

- Member States’ consular services should thoroughly assess visa applications submitted on behalf of children.

- The Commission will include specific reference to unaccompanied minors in the Immigration Portal, in order to improve information to potential migrants.

3.2. Protection programmes in third countries

Without prejudice to EU obligations to provide protection to those in need, minors should not be forced to embark on dangerous journeys to the EU to seek international protection. It is thus important to set up and/or continue to finance protection programmes close to countries of origin.

In line with the EU Guidelines on the Rights of the Child[17], the EU will continue to impose on beneficiaries of EU funding high standards of protection and assistance for unaccompanied minors; projects shall at least include education facilities, medical care, and information on their rights and on the procedures.

The EU and Member States should continue to:

Funding

- Fund activities aiming to provide protection and assistance to minor asylum seekers and refugees, including activities against exploitation and forced recruitment, for example by criminal groups.

Relations with third countries

- Support third countries in improving their legislative and administrative capacity to identify minor asylum seekers and victims of trafficking in human beings and set up specific assistance programmes.

- Include activities to assist and protect children in the framework of Regional Protection Programmes, which should be expanded to cover other key regions in terms of migratory flows to the EU and protection needs.

4. RECEPTION AND PROCEDURAL GUARANTEES IN THE EU

Reception measures and access to relevant procedural guarantees should apply from the moment an unaccompanied minor is detected at external borders or on EU territory, until a durable solution is found. Specialised civil society organisations should be invited to play a more active role throughout the entire process. Appropriate measures need to be taken to ensure a smooth transition period for those children who – due to turning 18 and becoming adults – may be in the danger of loosing protection and support.

4.1. Procedures at first encounter and standards of protection

The relevant EU migration instruments already contain provisions on reinforced protection of unaccompanied minors. However these provisions are context-specific, in that they apply to asylum applicants, refugees, illegally-staying migrants and victims of trafficking in human beings. Moreover, they do not provide the same standards of reception and assistance. Also, in some Member States a specific difficulty arises in relation to border cases/transit zones. These potential protection gaps must be addressed.

In particular, EU legislation does not provide for the appointment of a representative from the moment an unaccompanied minor is detected by the authorities, namely before the relevant instruments are triggered. Representation is only explicitly stipulated for asylum applicants. Although important safeguards for unaccompanied minors are provided by the Return Directive, the Temporary Protection Directive, the Directive on Victims of trafficking in human beings[18] and relevant international instruments[19], a margin for interpretation is left to Member States. Moreover, no common understanding exists on the powers, the qualification and the role of representatives. Unaccompanied minors should be informed of their rights and have access to complaint and monitoring mechanisms in place.

Wherever unaccompanied minors are detected, they should be separated from adults, to protect them and sever relations with traffickers or smugglers and prevent (re)victimisation. From the first encounter, attention to protection is paramount, as is early profiling of the type of minor, as it can help to identify the most vulnerable unaccompanied minors. Applying the different measures provided for by the legislation and building the trust are indispensable to gain useful information for identification and family tracing, ensuring that unaccompanied minors do not disappear from care, identifying and prosecuting traffickers or smugglers.

Unaccompanied minors should always be placed in appropriate accommodation and treated in a manner that is fully compatible with their best interests. Where detention is exceptionally justified, it is to be used only as a measure of last resort, for the shortest appropriate period of time and taking into account the best interests of the child as a primary consideration.

The disappearance of unaccompanied minors who should be in the care of national authorities is another major concern. Some (re-)fall prey to traffickers, others try to join members of their families or communities in other Member States and/or end up working in the grey economy and living in degrading situations.

Legislative action

- The EU should adopt higher standards of protection for unaccompanied minors by completing negotiations on the revision of the asylum acquis [20] and by adopting more comprehensive legislation on trafficking in human beings[21] and sexual exploitation of children[22].

- The Commission will ensure that EU legislation is correctly implemented and, on the basis of an impact assessment, evaluate whether it is necessary to introduce targeted amendments or a specific instrument setting down common standards on reception and assistance for all unaccompanied minors regarding guardianship, legal representation, access to accommodation and care, initial interviews, education services and appropriate healthcare, etc.

Information analysis and exchange

- The EU should assess different experiences to counter disappearance and promote best practices.

- Member States are invited to:

- prioritise the use of missing person alerts in the Schengen Information System for cases of absconding or disappearance from care;

- consider introducing review mechanisms to monitor the quality of guardianship in order to ensure that the best interests of the child are represented throughout the decision-making process and, in particular, to prevent abuse.

Agencies

- European Asylum Support Office is invited to organise training activities and develop best practices regarding reception conditions, asylum procedures and integration of unaccompanied minors.

- FRONTEX is invited to:

- Include in the training programme for border guards a specific training module on how to detect particularly vulnerable situations related to unaccompanied minors, such as trafficked minors.

- Include a separate paragraph on vulnerable groups, including unaccompanied minors, in working arrangements to be concluded with third countries.

- Provide technical assistance to border authorities in third countries on border-related measures regarding unaccompanied minors.

Funding

The Commission will:

- Use available funds effectively, to support European networks of guardians, to exchange best practices and develop guidelines, common curricula and training, etc.

- Fund Member States, where eligible, in establishing reception facilities meeting the specific needs of unaccompanied minors.

4.2. Age assessment and family tracing

The issue of age assessment is critical, triggering a number of procedural and legal guarantees in relevant EU legislation, as well as the obligation to respect data protection requirements when recording information on unaccompanied minors in databases such as EURODAC.

Age assessment procedures and techniques vary and concerns on their reliability and proportionality often arise. The possibility of appeal is not always guaranteed[23]. As underlined by experts, the guardian should be present at all stages of the procedure and children should be treated as such until the contrary is proven.

Family-tracing is a key element of the principle of ensuring family unity. It is also linked to obligations set out in the relevant EU instruments, i.e. a minor cannot be removed if he/she is not returned to a member of his/her family, a nominated guardian or adequate reception facilities in the state of return. However, Member States encounter great difficulties in family tracing.

- The Commission will issue best Practice Guidelines, in collaboration with scientific and legal experts and in cooperation with European Asylum Support Office who will prepare technical documents on age assessment.

- European Asylum Support Office is invited to organise training activities on age assessment, prepare a module within the European Asylum Curriculum and a best practice handbook.

- Member States should use the Visa Information System (VIS), once operational, to verify the identity of a unaccompanied minor if he/she is registered and under the conditions of Article 19 of the VIS Regulation[24].

- The Commission will:

- Support Member States in mutual assistance in family tracing in countries where one Member State has established functioning networks for this purpose.

- Promote a common approach (i.e. best practice guidelines) to age assessment and family tracing including on how to address these issues in the context of appeals.

5. FINDING DURABLE SOLUTIONS

Durable solutions should be based on the individual assessment of the best interests of the child and shall consist of either:

- return and reintegration in the country of origin;

- granting of international protection status or other legal status allowing minors to successfully integrate in the Member State of residence;

- resettlement.

- A decision on the future of each unaccompanied minor should be taken by the competent authorities within the shortest possible period (if possible maximum six months) taking into account the obligation to try to trace the family, explore other possibilities for reintegration in their home society and assess which solution is in the best interests of the child.

5.1. Return and reintegration in the country of origin

It is likely that in many cases the best interest of the child is to be reunited with his/her family and to grow up in his/her own social and cultural environment. Taking this into account, Member States should be encouraged to develop innovative partnership solutions with third countries of origin and transit, for example through funding a range of educational and training activities. However, return is only one of the options and the best interests of the child must always be a primary consideration. Voluntary departure must be prioritised..

The Return Directive[25] contains several binding legal safeguards relating to minors which have to be transposed into national legislation by December 2010 bringing significant improvements in several Member States. However, certain gaps in the protection of unaccompanied minors exist in EU legislation. In particular, Member States have the possibility to exclude from the scope of the Directive third-country nationals, who are apprehended in connection with the irregular crossing of their external border. Consequently, unaccompanied minors falling under this category may not benefit from the legal safeguards of the Directive. Member States are nevertheless bound by the guarantees and fundamental rights contained in national legislation, the Charter of Fundamental Rights of the EU, the UNCRC and the Council of Europe instruments. This situation should be further analysed.

Additionally, although guardianship provided for asylum seekers and assistance required in the return process differ, the need for continuity of assistance in asylum and return procedures must be taken into account. EU readmission agreements fully cover minors. However, since they have to be applied in accordance with the guarantees laid down elsewhere in the EU acquis , they do not contain any particular provision on minor protection.

Assistance to minors should be a continuous and stable process, which should include the return and post-return phase. In all cases, the return must be conducted in a safe, child-appropriate and gender-sensitive manner. The challenges in this respect are to ensure that the minors are returned in full respect of international standards and that they will be accepted in their home environment. Work on the ground is fundamental in convincing families and communities to welcome the minor’s return, as well as to prevent stigmatisation and further victimisation in cases of trafficking in human beings. This could be achieved by offering the possibility to follow an educational or training course and by helping the countries of origin to offer children and young people prospects in terms of study and work using existing financial instruments. Reintegration should also be monitored to ensure that no major problems arise.

Measures aimed at complying with minor-related provisions of the Return Directive are eligible[26] under the European Return Fund. Supporting third countries in addressing the problems of unaccompanied minors also continues to be a priority of the Thematic Programme. Member States and non-EU countries should make more targeted use of these resources.

The Commission will:

Funding

- Prioritise funding of unaccompanied minors-specific activities by the Return Fund and the Thematic Programme, including:

- projects providing for post-return monitoring and follow-up, especially in the case of child victims of trafficking in human beings;

- promote reunification of children with their parents through family tracing activities in Member States and countries of origin;

- support to families and communities for reintegration;

- support to authorities of countries of origin in managing the return, creating training centres, supporting families and returned minors, protecting victims of trafficking in human beings and preventing re-victimisation, etc.;

- studies and research;

- support for projects and policies creating study and training opportunities in the countries of origin, open to all minors.

Legislative monitoring

- Publish a study on existing Member State practices and legislation on the return of unaccompanied minors and situation of unaccompanied minors falling under readmission agreements.

- Promote child-friendly best practices in Member States.

5.2. International protection status, other legal status and integration of unaccompanied minors

Unaccompanied minors could be granted refugee or subsidiary protection status under the conditions set out in EU legislation. Given their particularly vulnerable situation, measures to support their integration into the host society are essential. The European Refugee Fund (ERF) could finance relevant activities.

EU legislation and policies do not address the situation of minors who cannot be returned, leaving the granting of residence permits for compassionate, humanitarian or other reasons to national legislation. In cases where return is not possible or integration in the country of residence is considered in the best interests of the child, a legal status should be granted to unaccompanied minors entitling them to at least the same rights and protection as beforehand, and suitable accommodation should be found. The minors should be supported in their path toward successful integration in the host society.

Funding

Member States are invited to maximise use of existing funding possibilities available under the ERF and the Fund for the Integration of third-country nationals.

- The Commission will:

- Strengthen unaccompanied minors-related activities when defining the priorities for Community Action in the annual work programmes adopted for these funds.

- Reflect on how to better include the unaccompanied minors dimension in the next generation of financial instruments, as of 2014, in the field of migration management.

- Finance projects for the integration of unaccompanied minors having legal status, with particular attention to programmes aimed at supporting the recovery of victims of child-specific violence or trafficking in human beings.

Policy development

- The specific issue of unaccompanied minors should be further developed in EU and national integration policies by exchanging and developing best practices, etc.

- The Commission will:

- Address the specific challenges posed by unaccompanied minors in the new EU agenda for migrants' integration.

- Examine the specific situation of unaccompanied minors in the planned study on the treatment of illegally staying third-country nationals who temporarily cannot be returned and assess the need for and advisability of establishing a common framework in relation to unaccompanied minors who cannot be returned.

5.3. Resettlement

Resettlement to the EU of unaccompanied minors who are refugees in third countries could also be an option after careful examination of the best interests of the child and if there is no other durable solution.[27] In making these assessments, Member States will continue to work closely with UNHCR and relevant civil society organisations.

- The Commission will encourage Member States to continue to make maximum use of funding possibilities available under the ERF in relation to resettlement activities.

- The Commission and Member States should ensure that the specific needs of minors are taken into account when implementing the proposed Joint EU Resettlement Programme.

6. CONCLUSION

This Action Plan aims to provide concrete responses to the challenges posed by the arrival of significant numbers of unaccompanied minors in EU territory, while fully respecting the rights of the child and the principle of the best interest of the child. It should be regarded as the starting point in a long-term process and its implementation depends on the support and work of all stakeholders: EU institutions and agencies, Member States, third countries and civil society. Further action will be proposed in future years and studies, analysis and impact assessments may be carried out.

The Commission will report on its implementation by mid-2012 and by 2015, and might propose a revision of the Action Plan and/or additional actions.

[1] For the purpose of this paper, the definition of an ‘unaccompanied minor’ derives from Article 2(f) of Council Directive 2001/55/EC.

[2] Synthesis and National Reports available at European Migration Network website: http://emn.sarenet.es/Downloads/prepareShowFiles.do;?directoryID=115

[3] Exceptions are Bulgaria, Cyprus, Denmark, Luxembourg, and Romania.

[4] COM(2009) 262.

[5] COM(2006) 367.

[6] 17024/09, p. 68.

[7] See also 'Action Plan Implementing the Stockholm Programme' COM(2010) 171 final.

[8] P7_TA(2009)0090.

[9] Article 24 of the EU Charter of Fundamental Rights and Article 3 of the UNCRC.

[10] Article 24 of the Charter and 3 of the UNCRC.

[11] Including the replies to a fact-finding questionnaire, Council document 16869/09.

[12] See EMN report.

[13] Published on 30 April 2009, available at www.fra.europa.eu

[14] Regulation (EC) No 862/2007.

[15] Fundamental Rights Agency, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX), the European Asylum Support Office.

[16] Council Directive 2004/81/EC.

[17] EU Guidelines on Promotion and Protection of the Rights of the Child, Council of the EU, EU Guidelines on Human Rights and International Humanitarian Law , 2009.

[18] Directives 2008/115/EC, 2001/55/EC and 2004/81/EC.

[19] International standards on treatment of unaccompanied minors deriving from the UNCRC have been identified by the Committee on the Rights of the Child in the General Comment No 6 (2005) Treatment of unaccompanied children outside their country of origin.

[20] Proposals amending: Council Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers, COM(2008)815; Council Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, COM (2008)820; Council Regulation (EC) No 2725/2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention, COM (2008) 825; Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee Status, COM(2009)554; and Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, COM(2009)551.

[21] Proposal for a Directive on preventing and combating trafficking in human beings and protecting victims, repealing Framework Decision 2002/629/JHA, COM(2010)95 final.

[22] Proposal for a Directive of the European Parliament and of the Council on combating the sexual abuse, sexual exploitation of children and child pornography, repealing Framework Decision 2004/68/JHA, COM(2010)94 final.

[23] See EMN report.

[24] Regulation (EC) No 767/2008.

[25] Council Directive 2008/115/EC.

[26] See document SOLID 2008-21.

[27] COM(2009) 447.