1. Human Rights of Migrant Children Course on International Migration Law IOM-UNITAR New York, 14-16 June 2011 Pablo Ceriani Cernadas Coordinator Program Migration & Human Rights, National University of Lanús, Argentina Consultant UNICEF DPP

2. Children affected by migration  Child migrants with their parents Regularly or Irregularly  Unaccompanied and Separated Children (GMG, 2008) Education and Employment Survival (conflicts; dire poverty) Family Reunification Victims of Exploitation (including trafficking)  Children Left Behind in country of origin  Children born in destination (ius soli/sanguinis)

3. Main Gaps/Challenges 1. Human Rights within Migration Policies 2. Child Perspective in Migration Policies 2. Migrants within Childhood Policies Sources: Bhabha/UNICEF 2008; GMG, 2008; Special Rapporteur of HR of Migrants, 2009; UNICEF TACRO/UNLA, 2010

4. Gaps  Children perspective in Migration Policies Approach through migration policies’ goals, rather than child protection;  Children First, Migrant Second (ILPA, UK, 2006) Children treated as adults: human rights abuses CRC (1989-2011): world-wide improvements → Immigration Field?  Migrants in Childhood Policies (and related policies) CRC Universality and Non Discrimination Social Integration, right to development Long-term comprehensive, inclusive public policies Lack of inter-institutional dialogues and policies (Childhood-Migration)

5. Challenges  Introducing International HR Standards within public policies which impact child migrants Necessity of further theoretical and practical developments  Balance between Migration Control and HR, including child perspective  HR of children affected by migration of their relatives (e.g., children left behind)  Data and Indicators (HR’s based)  Coherent, long-term approach to migration Migration as a choice, not necessity (root causes) Intercultural Integration Policies

6. Migration & Human Rights Principles  Best Interest of the Child (CRC, art. 3) Every law, measure or decision which impact directly and indirectly on children affected by migration  Non Discrimination (CRC, art. 2) Jus Cogens (IHR Court, AO No. 18, 2003) Migration and Grounds of discrimination  Nationality  National Origin (e.g., nationality of parents)  Migration Status (e.g., access to ESCR)  Disability and Migration (e.g., regulation of entrance and access to legal residence)  Economic, Social Status

7. Migration & Human Rights Principles (II)  Participation of Children In designing and implementing policies that may affect them Children Migrants in destination countries  Integration Policies, Education, Intercultural Programs, Access to Health Care with cultural- sensitive approach; Xenophobia  Protection approach → migration policies E.g., Unaccompanied Children (CRC, art. 20)  Repatriation  Deny of entry at borders Deportation of parents ESCR in destination (other public policies)

8. Migration & Human Rights Principles (III)  Pro Homine In each case: Applying the regulation most favorable for the child's rights Law interpretation in his/her best interest  Progressiveness Migration Policies Approach?  Preventive and Punitive? Rights-Based Approach?  Dynamism International migration challenges in the current context Human Rights Treaties as “living instruments” (ECtHR)  Groups in a vulnerable situation (children, irregular migrants) Additional protection measures  Universality Back to 1948? Human Beings at the centre

9. CRC Obligations  Respect, Protect and Fulfill human rights of all children within State jurisdiction  Adopt Measures (CRC, art. 3.1, 3.2)  Harmonize Legislation  Design public policies (participatory processes)  Produce data + distribution, access to information  Monitoring enforcement  Access to Justice (+ due process)  Training on rights-based approach, children rights and gender perspective in public policies

10. Migration Control & Children’s Rights Children Protection Approach?  Childhood Protection Bodies  Independent Monitoring Mechanisms  Training on Children’s Rights  Non Detention  Non deportation as punishment Unaccompanied: protection lens / vulnerability Accompanied: Responsibility for migration law breach?  Procedures: Child perspective?  Building up indicators

11. Due Process of Law  CRC, art. 12 (right to be heard), 40 (due process)  Procedures: entry (in country of origin and at borders); residence authorization (and renewal); repatriation and deportation, including detention  Unaccompanied Children Guardian. Legal Representative. Free Legal Aid Effective Remedy. Access to Justice CRC Committee, General Comment No. 6, 2005 Best Interest Determination Procedure  Accompanied Children Participation in migration procedures which may affect their rights (e.g., family or parents’ deportation)

12. Migration-related Child Detention  CRC, art. 37.b (arbitrary detention), 37.c (detention conditions) Best Interest of the Child Detention as the last resort  Children and detention: Criminalization  Principle of non criminalization  MWC; Special Rapporteur, annual reports; GMG, 2008  ECJ, El Dridi v. Italy (April, 2011) Detention as an interim measure  Administrative or Judicial Procedure  Non detention of children for migratory reasons (CRC Committee, G.C. No. 6) Never in their best interest (UN Special Rapporteur; UNICEF; ENOC; STEPS-European Parliament; South African Constitutional Court)

13. Alternatives to Detention  Alternative Measures By Law and in practice Budget. Infrastructure Duty of justify properly non application of alternative measures to detention Effective Remedy Reasons for detention?  Only migration status: discrimination?  Indicators on enforcement of alternative measures (quantitative/qualitative)

14. Detention as Last Resort  Due Process (CRC, art. 37.d) Judicial Control and Effective Remedy Free Legal Aid and Guardian Consular Assistance (Viena Convention on Consular Relations; ICtHR, AO-16/99; ICJ, Avena Case  Length of Detention Shortest period of time, by law  Place of Detention Non prisons-like. Open Centers  Detention Conditions Separated from adults ESCR (health care, education –outside the center-) Childhood Protection Officers in charge (Protection for Children, not prevention from them) ECHR, Case Mubilanzila v. Belgium, 2006  Indicators on the entire process of detention

15. Child Repatriation/Deportation  Deportation? Voluntary Repatriation or Returning? Ground: Best Interest of the Child Social Reintegration or Family Reunification (CRC Committee, General Comment No. 6, 2005)  Best Interest Determination Procedure Policies in Countries of origin and destination UNHCR Guidelines on BID (2006); UNICEF-UNHCR-STC (2009) Due Process Safeguards Durable Solutions Effective achievement of the goal invoked (e.g., family unit)  Non Refoulement ( Jus Cogens ) Committee CRC, G. C. No. 6 → Social and Economic conditions in country of origin Not Geographical limitation Indirect Removal (ECHR, T.I. v. UK, 2000; CAT, Com. 88/1997)

16. Parents’ Deportation and Children’ Rights  Impact on Children’s Rights CRC, art. 9.1: separation on his/her best interest Art. 9.2: right to participate Best Interest of the Child as Primary Consideration Right to Family Life  ICHR, Report on Human Rights of Asylum Seekers in Canadian System, 2000) Family Separation or Family Unite and Poverty? Also: Reunification after deportation (CRC, art. 9.4, 10)  Prohibition of entry to the country of destination? Third Alternative? regularization and family unit  Deportation of one parent Right of spouses to live in one particular country? See ECHR, Omoregie v. Norway and Y v. Russia, 2008

17. Social Rights  Non discrimination based in nationality, national origin, and administrative status  Non discrimination based in parents status (CRC, art. 2.1, 2.2) ESCR Committee, General Comment 20 on Non Discrimination, including against irregular migrants (2009) European Council on Social Rights:  FIDH v. France (Right to Health Care)  DCI v. The Netherlands (Right to Housing)  Challenge: legislation, practices that deny/restrict access to social rights of child migrants UN Committees Recommendations (www.hrcam.org)www.hrcam.org

18. Social Rights (II)  Right to an Adequate Standard of Living (CRC, art. 27) Absent discussion: Child Development & ESCR of migrants parents: child protection policy Negative Obligations? e.g. restriction in access to an employment Positive Obligations? Assist parents (art. 27.3)  Regularization, access to legal residence through permanent ways: e.g., for family unit; job offer; social integration policy  Indicators on ESCR of migrants and children born to migrant parents

19. Social Rights & Integration  Non discrimination (universality)  ESCR → key role for short and long term integration Impact on social cohesion and human development Myths about immigration and its impact  Intercultural public policies (multidirectional) Participation of children and adolescents health care; Sexual and reproductive rights; education; communication (media)  Xenophobia: prevention, sanction, access to justice  Political Rights & Integration

20. Right to Family Life  CRC art. 9: not separation from parents (only in best interest of the child)  CRC art. 10: facilitate family reunification (positive, human and expeditious manner)  CRC, art. 16: Protection of Family  Policies on: Family Reunification Regularization Deportation/ Repatriation (CRC, G.C. 6)  Negative and Positive Obligations

21. Child Birth Registration  Children born in destination countries Right to birth registration Right to a name Right to a nationality  Impact of migration control measures Interamerican CHR, Case Yean and Bosico v. Dominican Republic (2005) Committee CRC (General Comment No. 7, 2006 –Early Childhood; MWC, Concluding Observations)

22. Children Left Behind  Public Policies Social Rights Children Participation Protection Measures Gender Perspective  Reunification Policies in origin & destination  Preventing Adolescents Irregular Migration  Facilitating regular avenues for migration  Remittances: Private Income  Co-development Initiatives (not replacing development and human rights obligations, neither international cooperation responsibilities)

23. Children’s Rights and Root Causes of Migration  Fulfillment of CRC, CESCR, and other human rights instruments in countries of origin, including the right to human development  Duty-bearers Each State International Community Developed countries: cooperation and negative obligations Right to not migrate: national, regional, and global level (coherence and Shared Responsibility) Childhood and other policies which impact on children’s rights (poverty, unemployment, gender inequity)