Child return standards
Today children are involved in migration as adults and find themselves in other countries for a wide variety of reasons. Child migration may be the result of an informed choice, child exploitation, or a confluence of circumstances. Children may enter migration with their parents and families, with other adults, or alone. In these conditions, migration services may have to handle situations where children must be repatriated.
International law does not ban child repatriation, even though children are in a particularly vulnerable position, but it does set detailed guarantees that must be observed when a child is repatriated. There are more guarantees for children than for adults. Below are descriptions of the seven minimum guarantees that states must observe in accordance with the International Convention on the Rights of the Child.
Migrant children cannot be deprived of liberty
Deprivation of a child’s liberty solely on the basis of their or their parents’ migration status violates the rights of the child because it contravenes the best interests of the child and leads to long-term and traumatic consequences for the child’s physical and emotional health and development. Furthermore, children held in custody must endure poor conditions and violence. International organizations have repeatedly stated that, given the special vulnerability of children, keeping them in immigration detention is the equivalent of torture. If a child or their family must be supervised, these organizations recommend using alternatives to deprivation of liberty like regular check-ins with law enforcement bodies, surrender of identification documents to the police, residence at a specific address, or individual tracking.
Legal representatives for unaccompanied children
The authorities of a country where an unaccompanied child or a child travelling with people who are not their legal representatives is residing must appoint a legal representative for the child as soon as possible after the child is discovered. This representative must be authorized to represent the child’s interests independently and impartially during any contact with state agencies. State agencies do not have the right to take any actions or make any decisions about the child until a legal representative is appointed.
Procedure for determining a child’s best interests
Any decision regarding a child must be made in the child’s best interests. This includes a decision on repatriation. The child’s best interests must be determined within the framework of a special procedure conducted by an independent body and with the participation of specialists who work with children or in children’s rights. This procedure involves an assessment of the individual child’s situation and risks, a family study about the presence and situation of relatives in the country or origin and country of residence, an assessment of safety and existing risks, the child’s level of integration in the country of residence and the length of their absence from their country of origin, and the child’s ethnic, religious, cultural, and linguistic characteristics. The determination of the child’s best interests must serve as the basis for any future decision made about the child. Three outcomes are possible: repatriation, integration into the country of residence, or transfer to a third country. The child’s opinion must be taken into consideration. Furthermore, if repatriation is not in the child’s best interests, the child must be given the opportunity to legalize their status and the opportunity to stay or leave for another country.
Access to legal assistance and the ability to appeal
A child must have the right to appeal a decision on repatriation and must also have access to legal assistance. Legal assistance must be provided in a language and manner that are clear to the child and must be accessible and free of charge. If possible, the agencies that conducted the procedure for determining the child’s best interests should participate in the review of any appeal.
Repatriation can only take place with voluntary consent
Repatriation must be voluntary and can only take place with the consent of the child and their legal representatives. No means of coercion can be used in relation to the child, their family, or the people accompanying them. The family and the child must be given assistance upon their return insofar as possible.
In addition, the child’s country of origin and their family in the country of origin must give voluntary consent for the child’s return and confirm that they are prepared to receive the child.
After a decision on repatriation is adopted and well before the child’s transfer, the authorities must develop a reintegration plan for the child in the country of origin with account for the child’s opinion. The child must be properly informed about what will happen to them in a language and manner that are understandable to them.
The time of repatriation must be selected with account for the child’s best interests to avoid creating additional stress and difficulties for the child. For example, a decision may be made to allow the child to finish the school year/semester and not transfer them to their country of origin as quickly as possible. Repatriation requires time and preparation (collection of documents, creation of a reintegration plan). Unjustified delay of the deadlines for repatriation is not acceptable.
Every child must be provided with an education and medical care
If a child is alone in their country of residence, they must be placed in the social welfare system on level footing with children who are citizens.
Every migrant child must be given access to education regardless of migration status and length of residence. Every child must be provided with an education that corresponds to their level in a language that is understandable to them from the age from which the country of stay’s laws require mandatory education for citizens and to the level that is the mandatory basic level of education for citizens in the child’s country of residence.
Every migrant child must be given access to the healthcare system. Both education and healthcare must be provided free of charge.
Separation may only occur if a child is in danger
Migrant children must not be separated from their parents, other family members, or the people accompanying them, except when being with the family members or other people accompanying them puts the child’s life or health at risk. If additional supervision must be established over the parents, they must not be deprived of liberty. Instead, alternative measures must be applied to maintain the integrity of the family in the interest of the child.