Introduction

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Returning unaccompanied children: fundamental rights considerations

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Introduction

Individuals who are not entitled to stay in aEuropean

Union (EU) Member State are typically subject to being

returned to their home country– in accordance with

the Return Directive (Directive 2008/115/EC), the main

EU law instrument regulating returns.1 The directive

also applies to children, including those who are not

accompanied by their parents.

From afundamental rights point of view, returning

migrants to their home countries is asensitive activ-

ity. EU Member States face particular challenges in

applying the requirements f‌lowing from EU law to

unaccompanied children, the EU Agency for Fun-

damental Rights (FRA) has observed. This focus

paper therefore aims to support national authori-

ties entrusted with return-related tasks in apply-

ing the Return Directive to unaccompanied children

in full compliance with fundamental rights. It com-

plements aFRA report on immigration detention of

children, published in 2017.2

Note on terminology: who are

‘unaccompanied children’?

Unaccompanied children are children who are

not accompanied by their parents or aprimary

caregiver.* Although taken from the EU asylum

acquis, this def‌inition can also be used in the con-

text of return. Under EU law, this def‌inition also

encompasses children who are accompanied by

family members other than their parents or pri-

mary caregiver, and who are often referred to as

‘separated children’.** Under international and EU

law, achild is any person under the age of 18.***

* Directive 2013/33/EU of the European Parliament and of

the Council of 26June 2013 laying down standards for

the reception of applicants for international protection,

OJ L180, 29.6.2013, pp. 96-116 (Reception Conditions

Directive), Art. 2 (e).

** UN, Committee on the Rights of aChild, General Comment

No. 6 (2005): Treatment of Unaccompanied and Separated

Children Outside their Country of Origin, CRC/GC/2005/6, 1

September 2005, para. 8.

*** UN Convention on the Rights of the Child (CRC), 20

November 1989 (UNTS No. 27531, vol. 1577, p. 3), Art.1;

Reception Conditions Directive, Art. 2(d).

1 Directive 2008/115/EC of the European Parliament and of

the Council of 16 December 2008 on common standards and

procedures in Member States for returning illegally staying

third-country nationals, OJ L348, 12.24.2008, pp. 98-107. The

Return Directive was proposed to be recast in September 2018

(see European Commission (2018)). For afundamental-rights

centred analysis of the recast proposal, see FRA (2019).

2 In June 2017, FRA published acomprehensive report on the

European legal and policy framework on the immigration

detention of children (see FRA (2017b)). See also FRA’s earlier

report on detention of third country nationals in return

procedures (FRA 2010). These comparative reports cover

pre-removal detention of unaccompanied children and its

fundamental rights implications.

This focus paper is structured as follows:

Section 1 gives an overview of the issue and of

EU Member States practices.



Section 2 presents the ‘best interests of the child’

as an overarching principle in any action affect-

ing children, which is also applicable in the con-

text of returns.

Section 3 gives guidance on how to assess the

best interests of the child.

Section 4 looks at two specif‌ic scenarios at the

border affecting unaccompanied children, namely

non-admission at the border and passing back

to another Member State.

Section 5 describes how to implement the out-

come of the best interest assessment.



Section 6 brief‌ly discusses child-protection over-

sight and monitoring.

The analysis takes the relevant provisions of the

Return Directive as astarting point, alongside its

implementation guidance, the non-legally binding

Return Handbook.3 The provisions of the Return

Directive are analysed in light of the EU Charter of

Fundamental Rights4 (the ‘Charter’); the European

Convention on Human Rights

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(ECHR), as interpreted

by the European Court of Human Rights (ECtHR);

the United Nations Convention on the Rights of the

Child (CRC),

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as interpreted by its monitoring body,

the Committee on the Rights of the Child (CRC Com-

mittee); as well as other instruments of interna-

tional law binding on all Member States, including

the 1996 Hague Convention on Child Protection.7

3 Commission Recommendation of 27.09.2017 establishing

acommon “Return Handbook” to be used by Member States’

competent authorities when carrying out return related

tasks, C(2017) 6505 nal, Brussels, 27.09.2017, Annex (Return

Handbook).

4 Charter of Fundamental Rights of the European Union (OJ

C326, 26.10.2012, p. 391).

5 Convention for the Protection of Human Rights and

Fundamental Freedoms, Rome, 4 November 1950 (ETS No. 5).

6 United Nations Convention on the Rights of the Child, New

York, 20 November 1989 (1577 U.N.T.S., p. 3).

7 Convention on jurisdiction, applicable law, recognition,

enforcement and cooperation in respect of parental

responsibility and measures for the protection of children, 19

October 1996. All EU Member States are parties to it.