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The fundamental rights of unaccompanied minors in EU asylum law: a dubious trade-off between control and protection

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Abstract

The current Common European Asylum System (CEAS) includes several measures to protect unaccompanied minors. New CEAS proposals launched in 2016 continued to expand some of the existing safeguards but also introduced a more punitive approach towards asylum-seekers, sanctioning and preventing secondary movements and possible abuse of the asylum system. These measures need to be viewed against the backdrop of the so-called ‘refugee crisis’, creating a policy climate more focussed on control and deterrence. This equally affects unaccompanied minors, who struggle to enjoy the rights granted to them, as EU member states move towards an increasingly restrictive interpretation of the CEAS.

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Notes

  1. EUROSTAT (2016) ‘Almost 90,000 unaccompanied minors among asylum-seekers registered in the EU in 2015’ Eurostat press release 87/2016.

  2. European Asylum Support Office (EASO), Annual report on the situation of asylum in the European Union, 2015, p. 109: ‘In 2015, a total of 95 985 unaccompanied minors (UAMs) applied for international protection in the EU+, 7% of all asylum applications lodged and almost four times the number seen the previous year.’

  3. EUROSTAT, asylum applicants considered to be unaccompanied minors, press releases of 2016 (87/2016), 2017 (80/2017), 2018 (84/2018), 2019 (73/2019), 2020 (71/2020).

  4. See Save the Children, reports about pushbacks and violence against children at the Western Balkan borders in 2018 and 2019: ‘In 2019, more than a third of children travelling the Western Balkans route were reportedly pushed back. Almost half of these cases involved violence inflicted by police or guards at the borders.’

  5. See Spain, Supreme Court, No 453/2014, 23 September 2014 and UK, Court of Appeal C2/2017/2550, 23 May 2019.

  6. See e.g. Germany-Wiesbaden Administrative Court 6 L 4438 / 17 WI, 15 September 2017.

  7. See report: ‘Scope of the principle of non-refoulement in contemporary border management: evolving areas of law’, European Union Agency for Fundamental Rights, 2016.

  8. Parusel [5].

  9. Art. 3(5) Regulation (EU) 603/2013 on Eurodac (OJ 2013 L 180/1); Recital 13, Regulation (EU) 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person OJ L 180/31 (‘Dublin III Regulation’); Recital 33, Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection OJ L 180/60 (‘Procedures Directive’); Recital 18, Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted OJ L 337/9 (‘Qualifications Directive’); Recital 9, Directive 2013/33/EU of the European Parliament and the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) OJ L 180/96 (‘Reception Conditions Directive’).

  10. Art. 6 (3) Dublin III Regulation, Art. 23 Reception Conditions Directive, Recital 18 Qualifications Directive.

  11. CJEU, Case C-648/11, MA and others, 6 June 2013, ECLI:EU:C:2013:367.

  12. Hruschka [3], p. 476.

  13. Art. 23, Reception Conditions Directive.

  14. Art. 24 (2) Reception Conditions Directive and Art. 31. Qualifications Directive.

  15. Art. 2(j) Reception Conditions Directive, Art. 2(n) Procedures Directive, Art. 2(k) and Dublin III Regulation.

  16. Art. 24(1) Reception Conditions Directive, Art. 31 Qualifications Directive, Art. 25(1) Procedures Directive, Art. 6(2) Dublin III Regulation.

  17. Art. 24(1) Reception Conditions Directive, Art. 25(1) Procedures Directive.

  18. Art. 31(2) Qualifications Directive, Art. 24(1) Reception Conditions Directive.

  19. See report: ‘Guardianship systems for children deprived of parental care in the European Union’, European Agency for Fundamental Rights, 2018.

  20. Sauer, Nicholson, Neubauer and Brouwer [7].

  21. COM (2016)270 final, 4 May 2016.

  22. COM (2016) 272 final, 4 May 2016.

  23. COM (2016) 271 final, 4 May 2016.

  24. COM (2016) 465 final, 13 July 2016.

  25. COM (2016) 466 final, 13 July 2016.

  26. COM (2016) 467 final, 13 July 2016.

  27. COM (2016) 468 final, 13 July 2016.

  28. Press release European Commission: ‘Completing the Reform of the Common European Asylum System: towards am efficient, fair and humane asylum policy’, 13 July 2016.

  29. COM (2018) 634 final, 12 September 2018.

  30. The only proposal that was finally approved was the Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624 OJ L 295/1.

  31. New Art. 5 COM (2016)270 final.

  32. New Art. 3(3)(b) COM (2016)270 final.

  33. E.g. when the applicant makes clearly inconsistent or false representations, misleads the authorities with false information or comes from a safe country of origin. See full list Art 40(1) COM (2016)467.

  34. New Art. 3(3)(a) COM (2016)270 final.

  35. Art. 7(3) COM (2016), along with Art. 39 467 final.

  36. Art. 8 COM (2016) 467 final.

  37. Art. 8 Art. 14&15 COM (2016) 467 final, Art. 8 Art. 14&15.

  38. Art. 12 and 21(2) COM (2016) 467 final.

  39. Art. 40(5) COM (2016) 467 final: Accelerated procedure only applies to unaccompanied minors when they come from a safe country of origin or could present a security risk.

  40. Art. 41(5) COM (2016) 467 final: Border procedure only applies to unaccompanied minors when they come from a safe country of origin, a safe third country, could present a security risk or have misled the authorities by presenting false information, or withholding information that could have a negative impact on the decision.

  41. Art. 8 COM (2016) 466.

  42. Art. 22 COM (2018) 634.

  43. COM (2016) 467, Art. 22, COM (2016)270 Art. 8, COM (2016)466, Art. 36.

  44. Gualco [2].

  45. COM (2016)270 Art. 8(3).

  46. COM (2016)270 Art. 10(5).

  47. Gualco [2].

  48. Amendment 64 of European Parliament Report on the proposal for a directive of the European Parliament and of the Council laying down standards for the reception of applicants for international protection (recast) (COM (2016)0465 – C8-0323/2016 – 2016/0222(COD)): ‘Minors shall not be detained. Member States shall instead establish appropriate care arrangements and accommodate minors and families with minor children in accordance with Article 22(5) while their application for international protection is examined.’

  49. Press Release, European Parliament, ‘reception conditions for asylum-seekers agreed between MEPs and Council’, 14.06.2018.

  50. European Council Conclusions, 28 June 2018: ‘As regards the reform for a new Common European Asylum System, much progress has been achieved thanks to the tireless efforts of the Bulgarian and previous Presidencies. Several files are close to finalisation. A consensus needs to be found on the Dublin Regulation to reform it based on a balance of responsibility and solidarity, taking into account the persons disembarked following Search And Rescue operations. Further examination is also required on the Asylum Procedures proposal. The European Council underlines the need to find a speedy solution to the whole package and invites the Council to continue work with a view to concluding as soon as possible. There will be a report on progress during the October European Council’.

  51. European Council, EU-Turkey Statement, press release, 18 March 2018.

  52. Cases T-192/16, T-193/16 and T-257/16 NF, NG and NM v European Council.

  53. ‘Joint way forward on migration issues between Afghanistan and the EU’, 2 October 2016.

  54. Border management programmes in Libya amount to €57.2 million and include technical trainings on navigation skills and the delivery of rubber boats and land vehicles. European Commission, ‘EU delivers support to Libya’, 16 July 2020.

  55. Pijnenburg [6].

  56. ‘A European Agenda on Migration’, COM (2015) 240 final, 13.5.2015.

  57. Council Decision (EU) 2015/1523 of 14 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece and Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece.

  58. EU temporary emergency relocation scheme overview, European Commission, April 2019.

  59. Council Conclusions on enhancing cooperation with Western Balkan partners in the field of migration and security, 5 June 2020.

  60. European Council Conclusions, June 2018 (EUCO 9/18).

  61. den Heijer, Rijpma, Spijkerboer [1].

  62. Walter-Franke. [8] p. 46.

  63. Law (L) 4375/2016, 3 April 2016.

  64. Article 60(4)(f) L 4375/2016.

  65. Oxfam, 9 January 2019 ‘Vulnerable and abandoned, how the Greek reception system is failing to protect the most vulnerable people seeking asylum’.

  66. See e.g. Submission by the Office of the United Nations High Commissioner for Refugees in the case of International Commission of Jurists (ICJ) and European Council for Refugees and Exiles (ECRE) v. Greece (Complaint No. 173/2018) before the European Committee of Social Rights.

  67. See Save the Children, reports about pushbacks and violence against children at the Western Balkan borders in 2018 and 2019: ‘In 2019, more than a third of children travelling the Western Balkans route were reportedly pushed back. Almost half of these cases involved violence inflicted by police or guards at the borders.’

  68. See e.g. ECtHR Hirsi Jamaa and Others v. Italy (GC), application No 27765/09, 23 February 2012 and ECtHR Moustahi v France, Application No. 9347/14, 25 June 2020.

  69. Markard [4].

  70. Case C-550/16, A&A, EU:C:2018:248.

  71. ‘Realising the right to family reunification of refugees in Europe’, issue paper, Commissioner of Human Rights, Council of Europe, June 2017, pp. 33-35.

  72. Realising the right to family reunification of refugees in Europe’, issue paper, Commissioner of Human Rights, Council of Europe, June 2017, p. 40.

  73. Sh. D. and Others v. Greece, Application No. 14165/16 ECtHR, Judgment of 13 June 2019 and H.A. and others v. Greece, Application No 19951/16 ECtHR, Judgment of 28 February 2019.

  74. See report by CEAR: ‘Refugiados y migrantes en España: los muros invisibles tras la frontera sur’.

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  1. Asylum and Migration, Save the Children Europe, Brussels, Belgium

    Karen Mets

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Mets, K. The fundamental rights of unaccompanied minors in EU asylum law: a dubious trade-off between control and protection. ERA Forum 21, 625–637 (2021). https://doi.org/10.1007/s12027-020-00631-9

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