Marta Tomasi, Post-Doctoral Research Fellow, Free University of Bozen-Bolzano

1. Introduction

Unaccompanied minors[1] are a particularly vulnerable subset of migrants. Young and alone, they find themselves in a situation of ‘double vulnerability’: as children, and as children affected by migration.

According to the UNHCR, an estimated 50 million children are on the move in the world today, and the number of asylum-seeking and migrant children travelling alone has dramatically increased since 2010[2]. Eurostat reports that, in 2018, 19.700 asylum seekers applying for international protection in the Member States of the European Union (EU) were considered to be unaccompanied minors, accounting for 10% of all asylum applicants aged less than 18[3].

Despite a significant decline from data registered in previous years (in particular in 2015), the number of migrant and refugee children arriving in Europe is still high, and it puts significant strain on asylum systems, challenging governments to uphold their rights and to provide essential services. The risk is that the arrival in the EU of these children – who have generally fled situations of conflict and persecution in their country of origin[4] and were exposed to violence, exploitation and abuse during their journey – does not put an end to their problems. Too often, even within EU Member States, national standards and practices are not sufficient to ensure the minors’ rights, and sometimes even contravene their protection needs.

On 28 February 2019, the European Court of Human Rights (ECtHR) issued two Chamber judgments, in which it reaffirmed[5] that the respect for the double vulnerability of child asylum seekers must be a primary consideration, and not just an equal consideration to other factors (such as their irregular status).[6]

This derives from the general assumption internationally known as the principle of the “best interest of the child”, set out in Art. 3(1) of the UN Convention on the rights of the child (New York, 1989).[7] This principle has been the subject of extensive discussion in academic and operational circles, but the matter of its practical application remains challenging, as the concept is vague and indeterminate[8]. The ECtHR’s reliance on this principle in these recent decisions shows how the recognition of children’s rights in a number of international and regional agreements signed by the Council of Europe Member States enables their protection to be achieved more effectively.

2. H.A. and Others v. Greece

The H.A. and Others v. Greece case concerned the placement of nine unaccompanied minors, apprehended at Greece’s borders, under “protective custody” in different police stations in Northern Greece. The detention lasted for periods ranging between 21 and 33 days: then, the children were transferred to the Diavata reception center, and, eventually, to special facilities for minors.

The Court held that there had been a violation of Art. 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights (“ECHR”) on account of the conditions of the applicants’ detention in the police stations, which could have caused them to feel isolated from the outside world, with potentially negative consequences for their physical and moral well-being. On the contrary, the living conditions in the Diavata centre (which included a safe zone for unaccompanied minors) did not exceed the threshold of seriousness required to engage Art. 3 ECHR. The Court also found that “protective custody” did not comply with Art. 5 ECHR (right to liberty and security), as the lack of time limits could lead to arbitrary situations of prolonged detention, in breach of domestic law and of Art. 3 of the UN Convention on the Rights of the Child. It further noted that the public prosecutor at the Criminal Court, statutory guardian of the children, had not put them in contact with a lawyer and had not lodged an appeal on their behalf for the purpose of discontinuing their detention in the police stations in order to speed up their transfer to appropriate facilities.

The ECtHR referred to the case of Rahimi v. Greece (2011), concerning the detention and lack of care of a 15-years’ old unaccompanied Afghan. In that judgment the Court had found a violation of Art. 3, 13 and 5 ECHR, based on the fact that national authorities had not considered the question of the applicant’s best interests as a minor, nor his particular situation as an unaccompanied minor, and had not considered whether his placement in the detention centre was a measure of last resort. Similarly, in the H.A. and others case, the Court held that the authorities, by not taking into account the applicants’ particular vulnerability as unaccompanied minors and not considering whether the measure was one of last resort, had not put primary focus on the principle of the best interests of the children.

In both cases the ECtHR applied a procedural approach with regard to the provisions of the UN Convention on the Rights of the Child. As it has been noted, “the clear advantage of such an approach is that it encourages domestic authorities to actively consider whether they act in compliance with the international obligations toward minors. (…) A disadvantage of such an approach is that it does not give substantive guidance to domestic authorities on how to apply the rights of the child”[9].

3. Khan v. France

A step forward on the road to a more substantial protection of children can be found in the judgment Khan v. France. The applicant, an unaccompanied foreign minor, had been living for several months in the “lande de Calais” shanty town, in an environment completely unsuited to his status as a child and in a situation of insalubrity and insecurity. The ECtHR found that the failure by French authorities to provide the applicant with care before and after the dismantling of the camps constituted inhuman and degrading treatment in breach of Art. 3 ECHR. Particularly, the Court held that the extremely negative circumstances prevailing in the makeshift camps and the failure to enforce a court order intended to secure protection for the applicant[10] amounted to a violation of the respondent State’s obligations, and that the severity threshold of Art. 3 had been reached.

At least two parts of the reasoning show the “substantial” relevance given by the ECtHR to the principle of the best interests of the child. The French government, which had previously been ordered by the administrative judges to carry out a census of unaccompanied minors living in the “lande de Calais” and to improve their living conditions[11], described in its defense before the ECtHR some measures adopted in application of these decisions, such as the cleaning of the site, the creation of ten additional water points and fifty latrines, or the setting up of a waste collection system. Despite these efforts, the Court was not convinced that France had done all that could reasonably be expected to fulfill its obligation of protection and care of an unaccompanied foreign minor, an individual belonging to the category of the “most vulnerable persons in society”. According to the ECtHR, general measures that did not take into account the specificities of the child concerned (such as his intention to move to the U.K.) were to be considered insufficient to realize their best interests.

The French Government also maintained that its failure to comply with the order of the Boulogne-sur-Mer Regional Court was due to the lack of cooperation often showed by minors in the same conditions as the applicant, who did not always adhere to the proposed care measures. With regard to this argument, the Court found that this reluctance (which could be easily understood in light of the minors’ mistrust for authorities) could not in any case justify the inertia of public authorities, which had the obligation to ensure the protection of the children, and therefore to consider the appropriate measures to be taken in accordance to the specificities of their case.

4. Towards a more substantial and individualized notion of the best interests

It is quite evident that there is a great need to develop better policies on child migration. The assessment of the best interests of the child is a vital step towards this goal, and it should take place right at the start of any action towards the child. The ECtHR’s reliance on the UN Convention of 1989, setting international child-specific standards, clearly shows the way ahead, although a lot of work still needs to be done. The guiding principle of the best interests does not seem to be interpreted by the ECtHR only under its procedural dimension. In the first cases (H.A. and others and Rahimi), the ECtHR sanctioned the goverments’ failure to take into account the best interests of the children, and the automatic application of the national legislation. The principle of the best interests of the child in these cases plays an important but merely procedural role, in that the Court doesn’t consider to any extent its contents. In Khan, the French Government argued that the best interests of the child had been considered and led to the adoption of specific measures; nevertheless, the Strasbourg Court considered those attempts to be ineffective and insufficient to the substantial protection of the applicant. Due to the qualified conditions of vulnerability involved, the measures considered necessary to take care of each migrant unaccompanied child need to be effective and concrete: any decision needs to be grounded in the evaluation of the specific circumstances and has to be strongly individualized, by taking into consideration not only the level of development of the children involved, but also their stories, experiences, sufferings, cultural challenges, wishes, and future plans.

[1] According to one of the many existing definition, an unaccompanied minor is a person who is under the age of eighteen, unless, under the law applicable to the child, majority is attained earlier, and who is separated from both parents and is not being cared for by an adult who by law or custom has responsibility to do so (Office of the United Nations High Commissioner for Refugees, Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum, Geneva, February 1997).

[2] UNICEF, A child is a child: Protecting children on the move from violence, abuse and exploitation, 17 May 2017.

[3] EUROSTAT, Newsrelease 73/2019, 26 April 2019.

[4] In 2018, 29% of unaccompanied minors came from Afghanistan, Syria, and Iraq according to EUROSTAT, Newsrelease 73/2019, 26 April 2019.

[5] See, in particular, Rahimi v. Greece, Application No. 8687/08, 5 July 2011.

[6] H.A. and Others v. Greece, Application no.19951/16, 28 February 2019; Khan v. France, Application no. 12267/16, 28 February 2019.

[7] The principle, also protected by Art. 24(2) the Charter of Fundamental Rights of the EU (Niece, 2001), has been reaffirmed and explicitly applied to unaccompanied minors by EU institutions. See the EC Commission’s Communication to the European Parliament and the Council, The protection of children in migration, Brussels, 12 April 2017; the Council of Europe’s Action Plan on the Protection of Refugee and Migrant Children in Europe and the European Parliament’s Resolution on the protection of children in migration.

[8] COUNCIL OF EUROPE, The best interests of the child: A dialogue between theory and practice, Strasbourg, 2016.

[9] L. Lavrysen, Rahimi v. Greece and the proceduralization of children’s rights, Starbourg Observers, 15 April 2011.

[10] The Children’s Judge of the Boulogne-sur-Mer Regional Court required the Government to place the child with the Calais directorate of children and family affairs (order of 22 February 2016).

[11] Order issued by the Administrative Tribunal of Lille, Juge des référés (order no. 1508747, 2 November 2015), upheld by the Conseil d’État, Juge des référés (decision no. 394540, 23 November 2015).