EUROPE: Criticism of Proposed Directive
Summary: Save the Children Europe Group Press Briefing on the Approval of the EU Directive
[EUROPE, 2 July 2008] - Save the Children Europe Group notes the approval on June 18 2008 by the European Parliament of the proposed EU Directive on common standards and procedures for returning illegally staying third country nationals (the “Returns Directive”). While we welcome the overarching obligation in the Directive for Member States to take due account of the best interests of the child, Save the Children regrets that the Directive provides only limited guidance on what safeguards are essential to the return of both families with children and unaccompanied (or separated) children in a manner which respects international human rights law. Amongst its concerns, Save the Children notes that:
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Even though the proposed Directive contains certain safeguards in relation to
unaccompanied children, a significant number of unaccompanied children may not benefit from those safeguards at all. This is because the Directive permits Member States to completely deny these safeguards, inter alia, to“third-country nationals who have been apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not
subsequently obtained an authorisation or a right to stay in that Member State.”. Unaccompanied children frequently arrive in the EU through irregular routes and indeed sometimes have been trafficked into the EU without regular documents.
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Even where the Directive will apply to unaccompanied children, there is no provision for an appropriate procedure to establish their best interests properly before return and consequently no safeguard that a proper risk and security assessment take place. Nor are unaccompanied children expressly guaranteed access to basic legal representation in the EU before being returned to third countries.
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Unaccompanied children may be returned to third countries (and not necessarily their country of origin), even where they have no parent or guardian there, as long as there are “adequate reception facilities”. The Directive provides no further definition of this term. Is, for example, a camp in a country through which a child has travelled on his or her way to
the EU to be considered an adequate reception facility?
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Under the Directive, families with children and unaccompanied children may be detained as a measure of last resort and for the shortest possible period. Save the Children emphasises that, as a general rule, children should not be held in detention for administrative reasons. Moreover, the Directive omits to ensure that such families - or even unaccompanied children – have access to legal assistance for any review of their detention order. In exceptional circumstances the Directive allows for a detention period of up to 18
months, which we consider to be excessive and disproportionate.
Consequently, Save the Children Europe Group makes the following appeals for action:
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We call on the Member States to implement the Directive in a manner which complies with their obligations under the UN Convention on the Rights of the Child and, in particular, their obligation to afford unaccompanied or separated children special protection and assistance while present in the EU.
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We call on the Commission to ensure proper implementation of the Directive by vigorouslymonitoring national implementing measures.
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We urge the European Parliament and Council to commit to revising and improving the Returns Directive in the short term, following the Commission’s review three years after its entry into force.
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We urge the EU Member States and the EU institutions to consider the adoption of additional EU measures to ensure the protection and assistance within the EU of unaccompanied or separated children outside their country of origin.
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