Assessing the child's best interests

Pages8-16
Returning unaccompanied children: fundamental rights considerations
8
3. Assessing the child’s best interests
Return Directive, Article 10 (1)
Before deciding to issue areturn decision in
respect of an unaccompanied child, assistance
by appropriate bodies other than the authori-
ties enforcing return must be granted with due
consideration being given to the best interests
of the child.
This section focuses on how to assess the best
interests of the unaccompanied child before issu-
ing areturn decision, granting the child aright to
stay, or adopting another durable solution. It does
not, however, look at situations in which unaccom-
panied children are reunited with their parents in
another EU Member State or in athird country other
than the country of origin.
3.1 Aformal ‘best interests’
assessment
An unaccompanied child may f‌ind him or herself in
an irregular situation in different circumstances, as
Figure 5 illustrates. The child may be apprehended
after irregularly crossing aborder or while living
in an EU Member State without papers. The child
may have applied for international protection and
received af‌inal, negative decision. Or the child’s
residence permit may have been rejected, with-
drawn or not renewed.
At this initial stage, the Return Directive forms
the basic legal framework under EU law for decid-
ing whether or not the child should be allowed to
stay. This is the phase before initiating the return
procedure per se, with immigration authorities decid-
ing on either issuing areturn decision or regularis-
ing the child’s stay pursuant to Article6(4) of the
Return Directive.24 As noted, granting some form
of residence right is the default option in some EU
Member States.
The Return Directive does not exist in alegal vac-
uum. Member States must in practice implement
and apply its provisions in accordance with inter-
national human rights standards, including those in
the CRC, and with refugee protection obligations,
as well as with the Charter.25 As shown in Figure 5,
this means that the child’s best interests must be
assessed before making adecision on the child’s
future. The European Parliament has also called on
Member States to implement the principle of the
best interests of the child “for all decisions concern-
ing children [in the context of migration], regard-
less of their status.”26
The CRC Committee authoritatively asserted, in its
General Comment No. 6, that the ultimate aim in
addressing the fate of unaccompanied children is
to identify a‘durable solution’ that addresses all
their protection needs; takes into account the child’s
views; and overcomes the child’s situation of being
without parents or caretakers.27 Aside from return-
ing an unaccompanied child to his or her country of
origin, and in some specif‌ic cases, resettlement with
family members in athird country, ‘durable solu-
tions’ for them encompass integration into the host
Member State and granting some form of legal sta-
tus in accordance with the national law of Member
States.28 Adurable solution must give primary con-
sideration to the child‘s best interests. This requires
determining the best interests on the basis of the
child’s individual circumstances.
24 Art.6(4): “Member States may at any moment decide to
grant an autonomous residence permit or other authorisation
oering aright to stay for compassionate, humanitarian or
other reasons to athird-country national staying illegally on
their territory. In that event no return decision shall be issued.
Where areturn decision has already been issued, it shall be
withdrawn or suspended for the duration of validity of the
residence permit or other authorisation oering aright to
stay.”
25 See Return Directive, recitals (22) and (24) and Art.1.
26 European Parliament (2018), para. J.4.
27 UN, CRC Committee, General Comment No. 6 (2005): Treatment
of Unaccompanied and Separated Children Outside their Country
of Origin, CRC/ GC/2005/6, 1 September 2005, para. 79.
28 See the Anti-Tracking Directive (Directive 2011/36/EU),
recital (23) (in the context of unaccompanied child victims of
tracking).

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