Family reunification of unaccompanied minors: Realities of the European asylum system

Introduction

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The Global Compact for Safe, Orderly and Regular Migration which was adopted in 2018 (see Routed's special issue on the GCM) has re-emphasised the right of all human beings to enjoy asylum in other countries. When it comes to the matter of unaccompanied minors, inconsistencies have emerged between the family reunification policies of European Union’s Member States and the protection needs of children. The term ‘unaccompanied minors’ refers to non-EU nationals or stateless persons below the age of 18 who arrive in the EU unaccompanied by an adult responsible for them. Their capability to obtain family protection has been constrained due to narrow EU definitions of ‘family members’ that include only parents or responsible adults of unaccompanied minors. This has resulted in disregarding the willingness of unaccompanied minors to settle with young adult siblings who live in different Member States. Even though the best interests of children have nominally been prioritised under the EU approach on family reunification, they are not being practised by Member States in making the asylum decisions. This is mainly caused by the absence of a common and definite mechanism to decide the best interests; an issue that also leads to the expiration of assigned deadlines of take charge requests made for unaccompanied minors. In addition, there is a tendency of labelling minors who passed the age of 18 during the time of their detention as illegal migrants. Being labelled is a risk factor for the well-being of young adults which may create emotional and behavioural problems. Therefore, it is very clear that the EU procedural rules on family reunification of unaccompanied minors do not fully meet the obligations under the Global Compact.

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A confined focus 

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The universal right of children to leave their country of origin where persecution, serious harm or war are present has been assured by article 22 of the United Nations Convention on the Rights of the Child. In 2019 Eurostat reported that 19,700 asylum seekers who applied for international protection in 2018 were unaccompanied minors. Their family reunification is vital to ensure their protection. However, this has been less focused on by Member States when making their asylum decisions. Article 2(g) of the Dublin Regulation III (DR III) which permits EU States to share the burden of asylum seekers has stated that when the applicant is a minor, his or her mother, father or another adult responsible for the applicant who presently live in Member States can be identified as his or her family members. This means that siblings of minors have been omitted from the Dublin interpretation which does not allow unaccompanied minors to settle with their young adult siblings who reside in different EU countries. Additionally, shelter States are allowed to bring in family members of ill and disabled minors under the Dependency Clause of DR III. At this point the eligibility of minors has been restricted again as the aforesaid condition only applies to family members who are legally residing in Member States but not to family members who seek asylum in other countries. Hence, it is required to broaden the definition of family members so that unaccompanied minors are allowed to settle with their extended family members.

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What stands for the best interest of the child?

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Under the EU asylum system, the best interests of children have been known as the prime consideration in providing asylum for minors. With this regard, it is necessary to be aware of the best interests of unaccompanied minors before issuing take charge requests to other Member States. Then the question is how to define the best interest of the child and what criteria need to be considered in determining their interests. Notably, article 2(k) of the DR III has emphasised that sheltering countries are authorised to appoint representatives on behalf of unaccompanied minors to ascertain their best interests. As a result, volunteers, lawyers and even mayors in Member States act as representatives of the unaccompanied minors. Consequently, there is no common and definite approach to identifying the best interests of minors; at a minimum, this should entail a comprehensive understanding of the background of children and their needs of protection. In this regard, their representatives who are appointed prior to the administrative or judicial procedures should be specialised in capturing their best interests.

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Missing deadlines has resulted in prolonged detentions

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Missing deadlines of take charge requests is often caused by the negligence of the best interests of children. Particularly, unaccompanied minors who have received the acceptance of their take charge requests need to wait for extended time periods until the arrangements are made by the receiving countries. But most of these transfer decisions are cancelled due to the expiration of the assigned time limits. As a result of that minors are detained in inhumane conditions for prolonged time periods: a violation of article 3 of the European Convention on Human Rights. This reality was very much proven through the case of VG Wiesbaden AZ. 4 L 478/19.WI. A (2019) which addressed the matter of a single mother from Afghanistan who moved to Germany with one child while leaving her second child in Greece. Though Greece made a take charge request by considering the child’s best interest, both the take charge request and re-examination requests were rejected due to the missed deadlines. This also highlights that the existing asylum system has not yet considered minors who were initially accompanied by an adult and then abandoned during the journey. While the Directive 2008/115/EC permits to detain children only as a measure of last resort for the shortest period of time, their detention also occurs when enforcing decisions to send them to their family members who reside in other countries. Moreover, the ageing out of minors has led to their detention under the label of illegal migrants as the aged minors no longer qualify for child specific concerns. As a result, a number of unaccompanied minors who passed the age of 18 have experienced lengthy asylum detentions. The anxiety and depression are the most common mental disorders prevalent among these young adults. Against this background, it is mandatory to improve the effectiveness of the transfers by concentrating on the cases of ageing out of minors. 

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Remarks

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It is clear that the reluctance of EU States to implement a common institutional mechanism on family reunification has prolonged the separation of unaccompanied children from their families. The EU should urgently review its asylum policies on unaccompanied minors to establish an efficient and effective safeguards for them.

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