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Summary: A report by CRIN staff on the 2012 Day of General Discussion, focusing in particular on Child Migration.
The following is an overview of the day's presentations and discussions. Introductory statement In his introductory statement, Mr. François Crépeau, Special Rapporteur on the human rights of migrants, emphasised that “Migrant children should always be treated as children first”. Unfortunately, terminology such as ‘illegal migrants’ still dominates most discussions - language which “demonises migrant children and leads to further alienation, violence and xenophobia... No child is illegal, no human being is illegal. All children have rights irrespective of their status.” Mr. Crépeau highlighted a number of areas States should be prioritising when dealing with migrant children, such as data collection, the training of migration authorities, and better inter-agency coordination. Referring to his report to the Human Rights Council highlighting the detrimental effect of parental detention on children, he added that detention of migrant children is itself also a major problem. He concluded by urging for detention to be avoided as a matter of principle. Detaining families should only be done under very exceptional circumstances. It is incumbent upon States to develop alternatives to detention and to mainstream child rights based approaches into their politics, laws and practices if they wish to ensure that they are meeting their absolute minimum obligations under the CRC. Specific challenges The second speaker, Sasima, 16, was representing the Forum on Child Migration of Thailand. Sasima lives near the border between Thailand and the Lao People's Democratic Republc, and raised the issue of children with no nationality and their struggle to access education. She recommended that children should automatically receive the nationality of the country they were born in, that access to education should not be restricted for non-national children and that children should be protected throughout the process. This section was presented by Ms. Lena Karlsson, the Director for the Child Protection Initiative at Save the Children International. She emphasised that migrant families need access to information about paperwork, the risks involved and the treatment they are likely to receive in their destination country before they actually migrate. From the testimonies of children in international migration situations Save the Children have worked with, the greatest threat that many reported facing was violence and extortion from police officers. In addition, children are often denied access to basic services in the host countries. Ms Karlsson spoke of the need for a global study on transnational cooperation measures that will identify gaps and contribute to high-level dialogue on migration in the future. This section was presented by Mrs. Cecilia Landerreche, Director of Sistema Nacional para el Desarrollo Integral de la Familia (Mexico ). Mrs Landerreche described a strategy that Mexico had developed to address the needs of unaccompanied migrant children and reduce the risks they face at every stage of the migration process. The strategy had four components: - Prevention Mrs Landerreche emphasised that, when developing strategies, it is important to consider human mobility as a right and respect the best interests of the child. Public policies should address the root cause of the migration problems, and also international cooperation. Discussions on Thematic Issues in 2 Working Groups Working Group 1: The international framework on the rights of children in international migration situations, protection gaps and the individual and shared responsibilities of States Parties (including bilateral and/or multilateral agreements) in countries of origin, transit and destination. The discussion focused on the following four themes. 1. International legal framework Migrant children with disabilities Inter-country adoption Yanghee Lee reminded the group that the General Comment No.6 of the Committee on the Rights of the Child (2005) on the treatment of unaccompanied and separated children outside their country of origin, does cover a lot of the issues being discussed today. The problem, she said, was that little progress had been made since 2005. She agreed with participants that many children lack official identity and supporting documentation. Prof. Julia Sloth-Nielsen said the standards set by the African Charter on unaccompanied children are higher than other international treaties, including the Convention on the Rights of the Child (CRC). She recommended that when the Committee examines States, they ask them to adhere to the highest standard of law that they are signatory to. Another participant said the CRC was an important tool but the rights of the child should not be forgotten in other instruments, such as the International Labour Organization Conventions on migrant children, which States should take into account when forming national policies on migration. Several participants called for the detention of minors up to the age of 18 years to be ceased altogether. 2. Jurisprudence in international and regional courts in context of migration The International Disability Alliance highlighted the need to look more closely at domestic jurisprudence on disabled migrants and the perception of them as economic burdens. Courts often ignore the positive elements that disabled persons can bring to host nations, and need to be more diligent in applying the non-discrimination principle. They pointed out that Australia, whose delegate was in attendance, had made a reservation on this in the Convention on the Rights of Persons with Disabilities. Another participant referred to the Social Charter of the Council of Europe and the recent recommendations issued by the Committee, particularly on housing rights for asylum-seekers in the Netherlands. 3. Shared responsibilities between and within States, and also with Stakeholders UNICEF mentioned the study on transnational cooperation by the “Children on the move” Working Group, stressing the need to strengthen bilateral agreements. One participant highlighted the importance of coordination within government departments as well as the role NGOs can play in providing a middle point between undocumented children and authorities. The Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography, Ms. Najat Maalla M'JID, said: “In terms of State cooperation, we can’t be general with our recommendations. We have to go to States with models for cooperation. We need to build on what already exists and use these lessons learnt.” The Special Rapporteur on migrants said that he and Ms. Najat Maalla M'JID had put together a five page brief highlighting the need for a study on transnational cooperation. In the document, they outline the key principles that should be included in the study to ensure it is child rights centred. The study could be part of a much bigger research project, but it must focus on providing States with a practical tool. Another participant called for better coordination between the European Union and individual European Union Member States on migration policies, and highlighted the importance of child participation in national and regional policies on migration. The issue of age assessments of unaccompanied minors was raised by a number of participants, with one describing how countries differ in their approaches. This creates a problem as children could have a different status in different countries. Yanghee Lee said the key issue was that the Committee on the Rights of the Child (Committee) doesn’t have the information. States won’t give the information and the Committee really needs NGOs to help them. UNICEF joined the call for better data and a better range of data, which should be disseminated. They called for data gathering on irregular and unaccompanied children. Defence for Children International raised the issue of the lack of data on the relationship between child migration and labour. The representative from the Council of Europe spoke about the Council's Committee on migration and the guidelines for member States. They stressed the importance of looking at what happens to children who haven’t met the standards of the 1951 refugee Convention. UNCHR and UNICEF are working on a joint project on the best interests of the child in industrialised countries. The project is due to be completed at the end of the year. 1. Immigration processes and protection measures in place Participants agreed on the following: - Services should be provided regardless of the migrant situation of the parents 2. Procedure guarantees to ensure that child rights are respected. a) State policies and services: Participants shared a number of good practices by States, such as individual impact assessments, training and guidance to migration officers on child rights, and family tracing reunification processes. Participants agreed that there is a need to coordinate efforts between different authorities within host countries and to ensure that the resources to effectively support these services are protected from national budgetary cuts. States should make sure their methods and approaches are multidisciplinary and culture sensitive. There are major issues with how children are received in host countries. Participants stressed the importance of short decision-making processes and the need for a global study on transnational cooperation measures. 3. Deprivation of liberty in the context of migration, including detaining children and criminalising migration. There is a need for a clear definition of deprivation of liberty. Regional courts can play a role in providing a definition. Participants agreed that it is never in the best interest of the child to be detained. Although detention, in principle, should be only used as a last resort, it should be completely avoided for both accompanied and unaccompanied children. Children need access to free and quick legal representation provided by the host country. It is a fact that detention is happening in many countries and there is a need to monitor detention. States should think of alternatives to detention. Participants highlighted that there is a thin line between putting children in institutional care and keeping them in detention centres. States should take into account the fact some children have been victims of grave violations of their rights and should be provided with appropriate measures. Participants raised the problem of Statelessness when talking about children born in a country where their parents have illegal migrant status. Parents should have access to birth registration procedures and should have the right to register their children. Regardless of the child’s nationality, access to social services should be guaranteed. Participants also raised the issue of children left behind in their home country while their parents migrate for economic reasons. Side Event The International Detention Coalition organised a side event on children in immigration detention. Six formally detained children from around the world, shared their migration and detention experiences. One child explained the dangers of the trip, but said the risk was worth taking for a better life and future. Instead he was greeted by fences, bad treatment by police officers and detention. Another child explained the conditions in detention where he was kept in one room with fifty other people. He said: “Why are they treating me like an animal? I am not a criminal.” Mr Geert Verbauwhede, advisor to the Belgium Government, explained the process Belgium went through before a law was issued to abolish detention of migrant children and their families. The State provides families with individual houses and apartments. The International Detention Coalition launched their new report entitled: “Captured childhood”, introducing a new model to ensure the rights and liberty of refugees, asylum-seekers and irregular migrant children affected by immigration detention. Read the report here. Closing remarks Ms. Marta Mauras Perez, Vice-Chair of the Committee on the Rights of the Child and Chair of the Committee's Working Group on Children and Migration, said one of the most important things she had learnt from the day was the need to make children visible in the migration process. A further need was for States to implement the CRC. She said: "The CRC must become a practically universal instrument." She noted that accompanied children who migrated with their families were often not taken into account. Children between 16 and 18 years were not taken into account either when it came to offering them protection. Ms. Perez acknowledged that not all cases were the same but stressed that all children needed to be protected without any discrimination whatsoever. She said: "No child should be detained, and States need to recognize human mobility as a right of children." She also said States should listen to children and seek alternatives to repatriation, which is not an acceptable solution. Finally, she said the best interests of the child should be systematically incorporated into national policies. States needed to find a common ground and work together. To that end, establishing a United Nations Panel on Migration should be given consideration. To view all the submissions made ahead of the discussions, click here. What next? A formal report of the Day of General Discussion, including the full list of recommendations, is expected to be ready in February 2013. Next year's Day of General Discussion Jean Zermatten, Committee Chairperson, announced that the Committee’s 2013 Day of General Discussion would be on the theme ‘Media, Social Networks and the Rights of the Child’.
“The Rights of All Children in the Context of International Migration”
The first speaker, Fatoumata, 14, was the National Delegate of the Association of Children and Young Workers of Mali. She emphasised the need for authorities to continue to work on birth registration and improving the conduct of law-enforcement personnel. “I would like to ask all adults here to listen to children. Because if a child has a problem, the first person he or she will speak to is a friend, rather than an adult. The local, national and international authorities must listen to children and help them,” she concluded.
Global Overview of case studies on specific challenges faced by children in international migration situations and successful approaches for addressing them
Regional overview of good practices on measures for protection and promotion of children’s rights in the context of international migration
- Immediate care
- Regional cooperation
- Inter-institutional cooperation
According to the International Disability Alliance, there was a gap in the legal framework for children with disabilities. Several States had enacted legislation that require certain physical and mental abilities before citizenship can be granted.
A participant from South Korea spoke of the dangers of inter-country adoption in situations of emergency, such as the recent earthquake in Haiti.
Terres des Hommes welcomed the study and said there are some very good examples of bilateral cooperation (Albania and Greece, Benin and Nigeria). The cooperation agreements were not perfect, nor always strictly in line with the CRC, but they are promising and it would be good to see more examples.
Save the Children addressed the issue of statelessness, highlighting the fact that governments often pass on their responsibilities towards affected populations to each other.
4. Data collection and research by States
Other points mentioned
Working Group 2: National level measures to implement the rights of children in international migration situations in countries of origin, transit and destination.
The discussion focused in particular on:
- States should collect data on the number of unaccompanied and accompanied children.
- Legal representation should be made available to all children, and legal representatives should be trained on migration rights.
- Children should never be deprived of their liberty.
- Children should have access to healthcare services, especially mental healthcare.
b) Procedures:
4. The situation of children born in a country where the parents' migrant status is illegal.
Submissions
Further Information
- Visit the Committee's webpage for all documents relating to the day
- View OHCHR's coverage of the discussions