Accompanied Refugee Children Dr. Ciara Smyth, NUI Galway Responding to the Needs of Refugee Children and Young People

Policy neglect The EU focus on unaccompanied minors in policy and legislation has led to a neglect of the rights of accompanied minors This is apparent also in the Irish context I wish to explore this neglect through the prism of the right of the accompanied child who is seeking refugee status to ‘appropriate protection’ in Article 22 CRC The right to lodge an application The right to be heard in the asylum procedure The right to have the rights of the child regarded as refugee-relevant

Why the distinction between accompanied and unaccompanied children? The key distinction relates to CARE Accompanied children are presumed to be in the care of their parents Unaccompanied and separated children are entitled to alternative care Note, in the Irish context, separated children are wrongly assimilated to accompanied children! There is no major distinction when it comes to seeking ASYLUM Both sets of children are entitled to ‘appropriate protection’ Its just that for unaccompanied children asylum authorities have no choice but to engage directly with the child

UNHCR Guidelines on Child Asylum Claims, 2009 “The specific circumstances facing child asylum-seekers as individuals with independent claims to refugee status are not generally well understood. Children may be perceived as part of a family unit rather than as individuals with their own rights and interests. This is explained partly by the subordinate roles, positions and status children still hold in many societies worldwide. The accounts of children are more likely to be examined individually when the children are unaccompanied than when they are accompanied by their families.”

The right of the accompanied child to ‘appropriate protection’ Article 22 CRC Is it necessarily appropriate to subsume a child within a parent’s application? Three scenarios can be distinguished: The parent is the principal applicant i.e. it is the parent and not the child who is at risk of persecution or serious harm The child is the principle applicant i.e. it is the child and not the parent who is at risk of persecution or serious harm Both parent and child are at risk of persecution or serious harm. Necessarily, there are separate elements to their claims and their claims warrant separate evaluation

The right to lodge an application It follows that the accompanied child should have the right to be included in his/her parent’s application OR to lodge an independent application Necessitates early legal advice This is not possible under the IPA An adult applicant is deemed to also have made an application for any dependent, accompanying child (s. 15(3))

The right to be heard in the asylum procedure Article 12 CRC and General Comment No. 12 Has particular application to any judicial and administrative proceedings affecting the child i.e. the asylum interview and appeal Who is the child ‘capable of forming his or her own views’? What implications does the right of the child to express views ‘freely’ have for the conduct of the interview/appeal? What implications does giving ‘due weight’ to the views of the child have for the burden of proof and the use of automatic negative credibility inferences? Under the IPA the accompanied child has no right to be heard in the context of the interview/appeal, no additional guarantees and no exemptions

The right to have the rights of the child regarded as protection-relevant The CRC contains three types of rights: civil and political, socio-economic, and protection The CRC is truly integrated and holistic, there is no hierarchy of rights and no provision for derogation It follows that serious violations of any of the rights of the child are potentially relevant to determining an international protection need Some acknowledgement of this in the IPA (s. 7(2)(f) and s. 28(3)(a)&(4)) According to the Chief IPO issues in respect of a child are examined separately in the interview report and that a separate finding is made in respect of each child

To conclude The distinction between accompanied and unaccompanied minors in the context of the asylum procedure is a false one Growing, albeit limited, recognition of this in Commission proposals for an Asylum Procedures Regulation Need to begin the debate in the Irish context notwithstanding that the IPA ship has sailed!