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EDITORIAL
Despite harsher approaches to refugees and migrants in Europe there is an almost universal view that children should be exempt from restrictive measures, even among those who are hostile towards migration in general. The Convention on the Rights of the Child (CRC) provides the international legal standards governing states’ treatment of all children, regardless of migratory status and all EU Member States are party to it.
Yet, despite the rhetoric, intentions and legal standards, preliminary research from the ChildMove project presented at an MPI event in Brussels this week, provides empirical evidence for what has been increasingly exposed in recent years: 100,000s of children migrating to and within Europe are suffering in dire circumstances as a result of Europe’s policies and actions.
The picture, which chimes with ECRE’s own findings in the AIDA database, is one of widespread denial of the rights of the child. In practice, this abstract expression means that children on the move can’t access their rights to housing (they are living on the streets or in inadequate reception facilities), to education (they are not at school), to safety and life (they are exploited and abused), or their right to asylum (they are deterred or prevented from claiming asylum). And so on.
Why is this happening? How can it happen? There are immediate causes that lie in the poor functioning of asylum systems, such as the failure to carry out best interest assessments in some Member States, or the inadequate treatment of vulnerable persons in others. The CRC sets out the best interest principle, according to which the primary consideration should always be the best interest of the child in question. All children are classified as vulnerable according to international and EU law, meaning that states are obliged to put in place special measures to enable them to access their rights.
There are at least three deeper causes of this scandal. First, there is a long-standing tension between children’s rights regimes (norms, policy and practice) and migration policy (or anti-migration policy) with its objectives of preventing entry, increasing return, and deterrence through maltreatment in order to reduce the mythical pull factors. In this context, the best interest of the child does not prevail. Law on asylum and migration issues is often “harder” law than that deriving from the CRC, which like many international agreements suffers from enforcement challenges. Legal and policy disparities might then be mirrored at the institutional level, with those enforcing migration policy having higher status and greater resources than those working on children’s rights. Or the migration system may be given the responsibility for children on the move rather than them being part of the standard child protection system which would reflect their best interests.
Of course, none of this is inevitable. It would be perfectly possible to have asylum and migration policies that fully respected international human rights standards, including the CRC. The vision of the Global Compact on Migration goes in this direction, which is why some European countries don’t like it. The idea that it creates a human right to migration is a red herring. Rather, as well as creating sensible standards and mechanisms for international cooperation on an international issue, it seeks to protect the human rights of those on the move, including children, something that has become unfashionable in some European countries.
The tension between children’s rights and migration policy have been exacerbated in recent years by the focus on prevention of migration to Europe, regardless of the consequences. The creation of a hostile environment in Europe and containment in EU and non-EU border and transit countries affect children as well as adults, as the evidence from Greece, Italy, Turkey and Libya demonstrates. Any approach to policy-making or advocacy which tolerates violations for adults while seeking to carve out exemptions for children is doomed to fail because in practice children cannot be protected from the impact of these policies (are the Libyan “authorities” to be supported to carry out a best interest assessment and then place children in their child protection system after their EU-supported coastguard pulls back boats containing adults and children?)
Second, there are reasons linked to the complex identities of the children themselves, including gender and ethnicity. Nearly 90% of the children arriving in Europe to seek protection are boys. It is hard to imagine female children being consistently treated in the same way, even in Europe. Male children however are subject to the reductionist approach that presents all male migrants as a “threat” or undeserving, and this plays out in policy and practice. Ethnicity plays into this as well, particularly as regards detention and deportation.
Children become victims of the general dehumanising narrative. A recent European Migration Network (EMN) report talks about “the scale of unaccompanied minors in Europe” (rather than “numbers of lone children”); a Europol report from last month enters into victim-blaming when it comes to Nigerian children trafficked into Europe, with the main action proposed being to send them back (and therefore leaving them likely to be re-trafficked). There is a generalised suspicion that many adults are presenting themselves as children and of course there are some (although there are far more children who are not accessing their rights). This phenomenon arises because the only way to have a chance to be treated fairly and legally is to be classed as vulnerable.
One of the consequences of the punitive approach within Europe is increasing irregularity, including children refusing to engage with authorities because they are scared of detention, deportation and abuse – with reason. They choose to rely on peer networks or on smugglers. The latter sometimes treat children better than the authorities do but they are most often likely to subject or expose them to terrible harm. While human rights considerations may not always be of interest to policy-makers, the social impact of the very visible presence of destitute migrating children in Europe’s public spaces might spur action (although it might not).
Third, there are also national reasons for the neglect of children on the move. In some Member States, child protection systems are rudimentary at best and sites of abuse at worst; in all Member States there are gaps. In some countries, austerity measures have led to cuts in public services. In others, decisions have been taken to dismantle asylum systems.
Indeed, underlying all of this are political choices, and the fault lies with those making the choices to act or to omit to act, not with the children for their arrival or movement. Simply put, if resources are spent on keeping people out and sending them back, these resources are not being spent on prevention of exploitation of children.
There are actions that the EU can take at three levels: using its legal powers, its convening power and its funding power.
On the legal side, the impact of restrictive measures on children needs to be properly assessed. The 2016 proposals for reform of EU asylum law included important measures to improve the rights of children in asylum systems, including on guardianship, best interest assessments, expansion of the definition of family, right to education, and reduction in the use of detention for children. However, the overall approach was a punitive and a restrictive one so children would have been worse off on balance.
This reform has timed out but future reforms can avoid such errors. The underlying dysfunction of the allocation system contained in the Dublin Regulation also affects children; they suffer from the inadequate implementation of family reunification and their fear of forced transfer back to countries of first arrival is deterring registration. Ultimately deeper reform is needed, but in the meantime, commitment to temporary “solidarity” mechanisms to mitigate the Dublin rule is needed. Relocation is one such measure and Member States are not meeting their pledges while children languish in detention and or go missing.
For the Commission, focus should be on compliance with the existing rules in accordance with the human rights, as stipulated by the jurisprudence of the European courts. That means support to Member States and sanctions when they violate law, for instance on reception conditions. New legal measures on statistics and data must include provisions that collection and processing of data on children should only be for protection reasons.
The EU also has convening and capacity-building power through EMN and of course through the EU agencies, and particularly EASO. Sharing of good practice, training, and support from some Member States to others on children’s rights are all important. The EU’s ability to play these roles depends – again – on political choices. When DG Home allocates ten times as many resources (in terms of personnel) to return as to children’s rights, and when EASO’s (human) resources switch to returning people to Turkey and away from relocating people, including children, out of hotspots, these are the choices of our political leaders, not to be masked by reference to increased arrivals or by nebulous critiques of “a lack of political will”.
The EU’s funding for asylum and migration is important and more of it should go to child protection including through implementing the Commission’s own Communication on the Protection of Children in Migration.
ECRE recommends that in the proposed Asylum and Migration Fund (AMF) which will be part of the next EU budget (2021-2027), Member States should be obliged to allocate and spend 50% of their funds on the asylum priority in order to deal with deficiencies in asylum system and support protection, including for children; 30% should be allocated to and spent on the integration priority.
In AMIF, the current funding instrument, Member States were obliged to allocate certain percentages to each priority but there was no obligation for spending to follow allocation. This means that some Member States used disproportionate amounts of funding on return, ignoring other needs. The UK, for instance, has put its funds into a large-scale detention and deportation programme.
In addition, a greater percentage of funds should go to local authorities and civil society, including for child protection work. Currently, national programmes run by the Member States absorb 88% of AMIF funding – and they are not choosing to spend enough on supporting children on the move and some are flagrantly violating EU law.
Simplifying funding rules would greatly help those working with children, as would increased funds for early intervention and outreach to allow workers to reach children arriving before they are approached by exploiters. Support to the participation of children and learning from the anti-trafficking sector on victim-survivor-transformer approaches would all be useful in helping to understand the actions, motivations, needs and views of children on the move (with or without family members) which is hard to understand from a sedentary, adult perspective.
Through all its legal, convening and funding measures, the EU must promote the idea of the “firewall” – the clear separation between service provision and immigration enforcement. Those working directly with children have to be able to do their jobs without being complicit in other state policies. On one level this is a humanitarian emergency and humanitarian principles apply. In addition, a key obstacle to children accessing their rights is a lack of trust of the authorities (sometimes rational; sometimes fostered by malign forces around them). Service providers, governmental and non-governmental, must be able to build trust.
Children have arrived alone in Europe for different reasons. Some have escaped conflict or repression, some have been trafficked here, and some have been persuaded to come by the promises of smugglers or by family pressure. Whatever the reason, they are Europe’s responsibility. In theory, almost everyone – politicians and the public alike – accept that responsibility. After all, who could be “against” children or against children’s rights? The problem is that action does not follow and that is due to the policy choices of politicians, not the fault of the “numbers”, “arrivals”, “rates” or of the children themselves.
Editorial: Catherine Woollard, Secretary General for the European Council on Refugees and Exiles (ECRE)
EUROPEAN DEVELOPMENTS
Released after being detained in Malta for four months, the search and rescue vessel Sea-Watch 3 is returning to its mission as part of a joint fleet alongside the Spanish organisation Open Arms and Italian partner Mediterranea. With the Aquarius chartered by Médecins Sans Frontières (MSF) and SOS Mediterranee still detained in Marseille under threat of seizure from Italian authorities, the civilian search and rescue presence is under pressure while the loss of life in the Mediterranean climbs above 2000 in 2018.
The three vessel strong fleet, operating under a joint Manifesto supported by the rescue aircraft Moonbird is set to operate in the search and rescue zone off the coast of Libya. Johannes Bayer, Head of Operations at Sea-Watch states that: “The EU states are haggling over the distribution of single rescued persons, while the death rate in the central Mediterranean rose to a record high in September.” According to the Italian Institute for International Political Studies (ISPI) 19%- or one in five people- attempting to cross the Mediterranean irregularly in September 2018 drowned.
Amid the ongoing crack-down on civilian search and rescue, the disembarkation crisis sparked by Italian refusals to receive rescued migrants and the continued human rights violations in Libya, a Spanish fishing boat remains stuck at sea with authorities in Malta and Italy refusing to receive 12 African nationals including two children aboard the vessel. The 12 were rescued in international waters after jumping over board during a chase by the Libyan coast guard of a dinghy carrying them. Italian and Maltese authorities insist that the group must disembark in Libya, and the Spanish government maintains its position of leaving the responsibility to Libya despite a request by the ombudsman to the Ministry of Foreign Affairs to allow disembarkation in a Spanish port for humanitarian reasons, recalling that the United Nations High Commissioner for Refugees (UNHCR) does not consider Libya a safe port for migrants.
According to vice president Carmen Calvo, the Spanish government continues intense diplomatic efforts to resolve the situation. However, the government delegate in Valencia, Juan Carlos Fulgencio confirms that negotiations with the Government of Tripoli is moving slower than desired by Spain. Vice President of the Government of Valencia, Monica Oltra, has expressed willingness to welcome the rescued migrants.
As of November 28 the number of arrivals to Italy, Greece, Spain and Cyprus is 105,130 with 2119 people dead or missing.
For further information:
- Sea-Watch, Humanitarian fleet #United4Med strongly asks Europe to open its ports to people rescued by the fishing boat Nuestra Madre de Loreto and condemns Spanish negotiations with Libya, November 2018
- ECRE, Italy: Crack Down on Civilian SAR Operations while Operation Sophia’s Future Uncertain and Abuse Continues in Libya, November 2018
- ECRE, Search and Rescue ship to operate off the Libyan coast under Italian flag, October 2018
- ECRE, Italy and Austria look to ‘solve’ disembarkation crisis by processing migrants at sea, September 2018
- ECRE, At sea and in the port – search and rescue ships continue to be stuck in limbo, August 2018
NATIONAL DEVELOPMENTS
German Interior Minister Horst Seehofer has confirmed the continuation of Germany’s moratorium on deporting Syrian refugees, based on the evidence that Syria is still not a safe or secure country.
Seehofer has ruled out the option of deporting refugees and asylum seekers back to Syria, including those whose asylum applications have been refused and those who have been charged for committing crimes in Germany. The current blanket ban on deportations had been due to expire in December, ahead of which the interior ministers of 16 German states had discussed whether returns could commence.
On November 23, Seehofer, interior minister of the Bavarian Christian Social Union party (CSU), told Der Spiegel that the decision had been made to extend the moratorium. The move comes in the run up to Germany’s election campaign, in which Annegret Kramp- Karrenbauer, a candidate being considered to become the successor of Angel Merkel for the Christian Democratic Union (CDU), called for Syrian refugees who commit crimes in Germany to be deported, while Roland Wöller, the interior minister for the CDU in the eastern German state of Saxony, had also stated "As soon as the security situation allows, there should be an option to send people who pose a danger to the public and also criminals to Syria."
The final decision took into account the report by the Foreign Ministry which explained that "In no part of Syria is there comprehensive, long-term and reliable protection for persecuted people." The report highlights the likelihood that men as well as children could be forcibly conscripted into the army upon return, and that there have been "countless documented cases in which individual family members, often women and children, were detained and tortured for activities of other family members whom the regime considers to be hostile."
The extension of the moratorium has been confirmed amid further reports of the use of chemical weapons against civilians in Aleppo, with more than 100 people being treated in hospital after the suspected use of poison gas. Syrian warplanes have also attacked rebel-held areas in the north of the country for the first time since a truce came into effect on September 17 2018. This spate of violence marks the highest number of casualties in Aleppo since government forces and their allies recaptured the city from rebels nearly two years ago. United Nations Secretary-General António Guterres stated that any use of chemical weapons against civilians is a clear violation of international law.
For further information:
REPORTS & NGO ACTIONS
The latest Policy Note published by ECRE assesses the policy choices undermining the implementation of the Dublin Regulation and makes recommendations for rights-based compliance with the current system on responsibility for asylum applications.
Member States remain trapped in a futile and costly cycle in their implementation of the Dublin system. Obstacles to Dublin transfers stem from deliberate policy choices such as lack of compliance with Common European Asylum System (CEAS) standards, including rules on reception and refugee status determination, as well as creating a generalised hostile political environment on migration. These choices are partly made due to the perceived unfairness of the Dublin system, which has been consistently highlighted by ECRE among others. Member States try to enforce transfers without understanding and addressing these obstacles, which in turn leads courts to block transfers for legal reasons arising from these deficiencies. Courts can prevent individual transfers but cannot themselves effect policy changes.
To break out of this cycle, ECRE recommends Member States to adopt clear instructions precluding the transfer of asylum seekers to Member States in which they would be at risk of direct or indirect refoulement, on the basis of objective evidence. Where a Member State is deemed to raise risks of refoulement, Dublin Units should promptly make use of the Regulation’s “sovereignty clause”.
The EU institutions also have a duty to ensure that the CEAS is implemented and complied with. The European Commission should thoroughly assess states’ compliance with fundamental rights in Dublin implementation as part of their country monitoring of overall the implementation of the CEAS, and initiate infringement proceedings where systems are not brought in line with standards. The European Parliament should make use of parliamentary accountability mechanisms to ensure that monitoring actors perform their tasks.
For further information:
ECRE has published its comments (HYPERLINK) on the European Commission’s proposal for a recast Return Directive. The Commission has billed its proposal of September 12, 2018 as a ‘targeted review’, however, its impact could be far-reaching, leading to increased detention, including at the EU’s external borders, and a lowering of safeguards to the detriment of third-country nationals’ fundamental rights. As it concerns a recast proposal ECRE has limited its analysis to the impact on fundamental rights of those provisions the European Commission is proposing to amend.
The European Commission’s amendments include new criteria to assess a ‘risk of absconding’ – a grounds for detention as well as for not granting voluntary departure. This new list of criteria is so broad it could lead to systematic detention, reversing the presumption whereby detention should only be considered as a last resort and severely limiting individuals’ possibilities to choose a more humane voluntary departure. There are more restrictions on voluntary departure, including instances where it would not be available at all. Legal remedies have been restricted both in terms of imposing extremely tight time-limits, as well as reducing the possibilities for appeal and the suspensive effect of appeal after the first instance.
There are new grounds for detention as well as a new maximum period of detention of between three and six months. The proposed new border procedure is extremely problematic from a human rights perspective. In particular, the link between asylum and return procedures, systematic detention at the border, detention periods, time limits for lodging appeals and the effectiveness of the remedy provided, the proposed fast-track return procedure – all set an extremely low standard, which is at odds with international human rights law and the EU Charter of Fundamental Rights.
There is a new obligation on Member States to develop return management systems which could be a welcome improvement and provide more data on returns, which is generally weak. There is currently little information on what the Frontex centralised system for return case management might look like but in light of increased risks of violation of data protection rules triggered by national and centralised return management systems, data protection guarantees would need to be strengthened. Finally, the proposal calls on Member to have programmes providing for enhanced return assistance and counselling and support for reintegration in third countries of return with the aim of promoting voluntary return, although these are linked back to a very broad and ill-defined obligation to cooperate.
The fact that the proposals have been presented only eight months before the European elections in May 2019 provides very little time for the European Parliament and Council to adopt their respective positions and conclude inter-institutional discussions. Civil society organisations such as the Swedish Red Cross and the Swedish Refugee Advice Centre have expressed their concerns about the proposal including the probability of increased detention. In his blog, Steve Peers, Professor of Law at Essex University has said, ‘This proposal is entirely concerned with facilitating the expulsion of irregular migrants, and detaining them to that end – in addition to imposing entry bans to make sure they do not return.’
For further information:
 
Oxford University’s Refugee Studies Centre has published a report on the importance of refugee-led community organisations (RCOs) in low- and middle-income countries. By examining four cases of refugee-led social protection in Kenya (Nairobi and Kakuma) and Uganda (Kampala and Nakivale), the research shows that, in contrast to the dominant humanitarian model premised upon a provider/beneficiary relationship, refugees themselves are important and often neglected providers of protection and assistance.
The report describes that at the global level, the rhetoric around RCO’s is gradually changing, and there has been increasing recognition of the need to support refugee lead initiatives. However they are still absent from most of the crucial strategy documents published by the United Nations Refugee Agency (UNHCR), while formal partnerships between the UNHCR and RCOs are discussed rarely and with varying significance from country to country.
RCOs often lack funding in a dilemma the report explains as a “chicken and egg” problem; “In order to receive recognition and funding, they need to have capacity. But in order to have capacity, they need recognition and funding”. Nevertheless they often provide protection and assistance in areas as diverse as education, health, livelihoods, finance, and housing, despite their lack of access to external funding or recognition. In many cases refugee recipients regard these informal sources of social as more important than formal sources of assistance, and some RCOs thrive largely due to individual leadership and the creation of transnational networks that bypass the formal humanitarian system.
The reports suggests that by engaging with RCOs, the UNHCR and other donors and international organisations can meet their commitment to the localisation agenda and assist them to become sustainable providers of social protection on a more participatory basis, within formal partnership structures.
It recommends that UNHCR adopts a global policy framework on refugee-led community organisations and that international organisations and NGOs should develop training and capacity-building schemes for community leaders. Meanwhile, RCOs can do a number of things to enhance their own recognition and sources of funding, through advocacy, collective action and transnational networks.
This week ReSOMA, the Research Social Platform on Migration and Asylum has released a Discussion Brief entitled “Crackdown on NGOs assisting refugees and other migrants”, outlining how “the political and operational priority to tackle migrant smuggling” has impacted civil society actors that try to assist refugees and migrants.
NGOs, Search and Rescue operations, and volunteers have often been on the frontline of what has been called the ‘refugee crisis’ in Europe, providing food, shelter and legal advice and monitoring human rights situations faced by refugees and migrants on the ground. But research indicates that attempts to balance legitimate political objectives of countering and preventing organised criminal groups from smuggling migrants for profit, with the right of association and humanitarian assistance, are also provide an obstacle for the functioning of civil society actors.
The Brief discusses in further detail the criminalisation of NGOs and its facilitation by EU law, the harassment and policing of NGOs beyond formal criminalisation, the role of EU funding in this regard, and the potential impacts of the policies that have been adopted.
In a report released this month the European Agency for Fundamental Rights (FRA), present the result of an online consultation with its civil society network which looks at the challenges faced by civil society organisations (CSOs) in their day- to- day work, ranging from changes in the legal environment, challenges in finding and accessing resources, to obstacles in accessing policymaking, and threats and attacks. FRA concluded that the results of the consultation “confirm earlier messages and point to the need to provide civil society with the resources and the ‘safe space’ that it needs to flourish and operate”.
FEATURED CAMPAIGNS
#Unlocked18: Unlocking Detention shines a spotlight on the hidden world of immigration detention. This ‘virtual tour’ of the immigration detention estate uses Twitter, Facebook and a website to ‘unlock’ the gates of immigration detention centres and hear the voices of people who have been detained, volunteer visitors, NGOs, campaigners and the families, friends, neighbours and communities affected by immigration detention. This year’s ‘tour’ runs from 22 October to 18 December 2018.
EVENTS
- 29- 30 November 2018, Rotterdam, Towards the IMISCOE Research Infrastructure of the Future; IMISCOE meets CrossMigration, IMISCOE
- 3- 5 December 2018, Rome, “The Salvini Decree Law 113/2018: radical changes in the right to asylum”, ASGI and Associazione Spazi Circolari
- 6 December 2018, Brussels, Stand- In: End the Criminalisation of Civilian Search and Rescue, Seabridge Brussels
- 7-8 December 2018, Lisbon, Advanced ELENA Course “Refugee protection: from recognition to rejection”, ECRE
- 11-15 December 2018, Sanremo, International Refugee Law Course, International Institute of Humanitarian Law
- 12- 14 December 2018, Murcia, Fourth International Conference; Migrants and Refugees in the Law, Universidad Catolica de Murcia
- 27 January 2018, Geneva, Humanitarian Shelter Coordination (Master Level Short Course) IFRC, UNHCR, CENDEP and Oxford Brokers University
- 8 March- 5 April 2019, Geneva, International Refugee Law, Geneva Academy
- 15- 16 March 2019, Jordan; British Institute, Palestine Refugees and International Law, Refugee Studies Centre, University of Oxford
- 18 March 2019, London, Introduction to Children in Emergencies, RedR UK
- 28- 29 March 2019, Ghent, Conference 'Families Beyond Borders: Migration with or without Private International Law', Ghent University Institute for Private International Law
- 6- 10 May 2019, Toronto, The Centre for Refugee Studies Annual Summer Course
- 3-5 June 2019, London, Refugee Law Initiative Fourth Annual Conference, ‘Rethinking the “Regional” in Refugee Law and Policy’, Refugee Law Initiative
VACANCIES
CALLS FOR PAPERS & OPEN CALLS
- Call for participants: SOGICA: Sexual Orientation and Gender Identity Claims of Asylum, as soon as possible
- Call for participants: EPSON: Study on the impacts of refugee flows on territorial development in Europe, as soon as possible
- Call for Papers: Migration and Social Protection in the European Union: Public Policies, Migrant Practices and the Politics of Welfare, Abstracts by 30 November 2018
- Call for Papers: Understanding International Migration in the 21st Century: Conceptual and Methodological Approaches, 16th Annual IMISCOE Conference, Proposals by 1 December 2018
- Call for Papers: Interrogating Integration CARFMS 2019, York University Toronto, December 1 2018
- Call for Papers: 'Democratizing Displacement', Refugee Studies Centre Conference, 7 December 2018
- Call for Papers: 'Migration and the Rule of Law', ESIL Interest Group on Migration and Refugee Law, Abstracts by 10 December 2018
- Call for Registration: International Migration and Refugee Law Moot Court Competition, Vrije Universiteit Amsterdam, 2 January 2019
- Call for Papers: ‘Counter- Narratives to Regional Cooperation: Contesting European Union’, Kate Hamburger Kolleg/ Cetnre for Golbal Cooperation Research, 5 January 2019
- Call for Papers: Refugee Law Initiative Fourth Annual Conference, London, 28 January 2019
- Call for Papers: ‘Migration and Poverty’, The Centre for Ethics and Poverty Research, Salzburg, 31 January 2019
- Call for Papers: Humanitarian and Conflict Response Institute: Journal for Humanitarian Affairs, January 2019
- Call for Papers: Tribute to Barbara Harrell-Bond: Forced Migration Review: Proposals by 4 February 2019
- Call for Papers: Journal Social Sciences: Special Issue “Integration and Resettlement of Refugees and Forced Migrants”, 15 April 2019
- Call for Papers: The Center for English Translation and Anglo-Portuguese Studies (CETAPS): Congress calling for papers on refugee world(s), 15 April 2019
- Call for Papers: University of Warwick: Workshop on Security, Borders and International Development: Intersections, convergence and challenges, 25 – 26 April 2019
- Call for Participants: IMISCOE PhD Summer School in Istanbul, Studying Integration and Social Cohesion - Theory, Practice, Method and Ethics of Conduct, 9- 14 June 2019
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