Introduction
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Returning unaccompanied children: fundamental rights considerations
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Introduction
Individuals who are not entitled to stay in aEuropean
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 afundamental rights point of view, returning
migrants to their home countries is asensitive 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 aFRA 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 aprimary
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, achild is any person under the age of 18.***
* Directive 2013/33/EU of the European Parliament and of
the Council of 26June 2013 laying down standards for
the reception of applicants for international protection,
OJ L180, 29.6.2013, pp. 96-116 (Reception Conditions
Directive), Art. 2 (e).
** UN, Committee on the Rights of aChild, 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 L348, 12.24.2008, pp. 98-107. The
Return Directive was proposed to be recast in September 2018
(see European Commission (2018)). For afundamental-rights
centred analysis of the recast proposal, see FRA (2019).
2 In June 2017, FRA published acomprehensive 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 astarting 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
5
(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
acommon “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
C326, 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.
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