Specific cases at the border: non-admission and passing children back to another Member State
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FRA Focus
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4 . Specific cases at the border:
non-admission and passing children
back to another Member State
This section discusses two specific, border-related
situations envisaged by the Return Directive, and
their implications for the protection of unaccom-
panied migrant children when refused entry at
the external borders or apprehended in the bor-
der area. The modalities of the best interest assess-
ment discussed in Section 2, including the various
elements and factors to consider, equally apply to
these scenarios.
4.1 At the external borders
The first situation concerns apossible limitation of
the directive’s material scope. Article 2 (2) (a) of
the Return Directive allows Member States not to
apply the directive to “border cases”, namely to
those migrants in an irregular situation whose entry
was refused at the external border; or who have
been apprehended in connection with an irregular
crossing of external borders and who have not sub-
sequently obtained an authorisation to stay. Once
aMember State makes use of this opt-out clause
81
and excludes the application of the directive to these
situations, it also affects unaccompanied children
who have been subject to these measures at the
border or in its vicinity.
Nevertheless, the non-application of the Return
Directive in these cases does not deprive chil-
dren of their legal protection under EU law: Mem-
ber States must still respect anumber of minimum
safeguards set forth in the Return Directive as spec-
ified in Article 4 (4). These include the full respect
of the principle of non-refoulement and the obliga-
tion incumbent upon national authorities to ensure
that the level of legal protection of such unaccom-
panied children is not less favourable than that set
out in those provisions of the directive that gov-
ern the limitations on the use of coercive measures
(Article 8 (4)-(5)). It also requires Member States
to apply the safeguards relating to the postpone-
ment of removal (Article 9); to ensure emergency
health care and necessary treatment of illness, as
well as to take into account the needs of vulnerable
persons, including (unaccompanied) children (Arti-
cle14(1)b) and d)), among other things.
81 Such aderogation must be expressly stated in national
implementing legislation; otherwise, it cannot develop legal
eect (Return Handbook, p. 13). The European Commission
also needs to be ocially notied about it.
An additional layer of the legal safety net comple-
ments these basic guarantees. First, opting out of
applying the Return Directive to “border cases” does
not exempt Member States from their obligations
under the EU asylum acquis, in particular in pro-
viding access to asylum procedures, alongside the
attached procedural rights.82 Second, even if such
aderogation is used, national legislation and prac-
tice on border cases must fully respect international
law and international human rights law protecting
all migrants. This encompasses, among others, the
absolute prohibition of refoulement and the prin-
ciple of duly considering the best interests of the
child as set out in the Charter (Article 24 (2)), inter-
national instruments83 and ECtHR case law.84
For instance, the CRC Committee confirmed in
arecent case concerning the rejection of an unac-
companied child at the border of the Spanish enclave
Melilla that the CRC applies to all children, regard-
less of their legal status, and the convention can-
not be curtailed at the border.
85
The CRC Committee
underlined that States must conduct an initial best
interest assessment prior to any removal, such as
the rejection at the border, which needs to include,
among others, age and vulnerability assessments.
Failing to do so before refusing entry would violate
Article 3 (best interests of the child) and Article 37
(right to liberty and freedom from torture) of the
CRC. Best interest assessment requires access to
territory,86 as such access constitutes aprerequi-
82 Return Handbook, p. 16.
83 For example, Art. 6-7 of the International Covenant on Civil
and Political Rights, Art. 3 of the Convention against Torture, as
well as Art. 3 of the CRC.
84 For ageneral account of the ECtHR’s abundant case law
concerning non-refoulement, see Council of Europe (2017), pp.
17-21. Regarding the interpretation of the best interests of the
child principle, see e.g. ECtHR, Rahimi v. Greece, No. 8687/08,
5 April 2011; ECtHR, Berisha v. Switzerland, No. 948/12, 30 July
2013. For an overview of the ECtHR’s case law on this principle
in the migration context, see e.g. Smyth, Ciara (2015).
85 UN, CRC Committee, D.D. v. Spain, communication no. 4/2016,
CRC/C/80/D/4/2016, views adopted on 1 February 2019.
86 UN, Committee on the Protection of the Rights of All Migrant
Workers and Members of Their Families & Committee on
the Rights of aChild, Joint general comment No. 4 (2017) of
the Committee on the Protection of the Rights of All Migrant
Workers and Members of Their Families and No. 23 (2017) of
the Committee on the Rights of the Child on State obligations
regarding the human rights of children in the context of
international migration in countries of origin, transit, destination
and return, CMW/C/GC/4-CRC/C/GC/23, 16 November 2017,
para. 17.
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