1. Introduction

Thousands of unaccompanied and separated children from third countries are currently present in the EU and every year there are substantial numbers of new arrivals.1 Although the origin and numbers of these children fluctuate from year to year, the arrival and presence of these children in the EU is a long term feature of asylum and migration flows into the EU.

Unaccompanied and separated children in the EU find themselves in a variety of different situations. Some unaccompanied and separated children are seeking asylum or protection, because of a fear of persecution, armed conflict or disturbance in their own country. Other unaccompanied and separated children are the victims of trafficking for sexual or other exploitation. Others have travelled to Europe to escape conditions of serious deprivation or human rights violations. Some children come to look for new opportunities or a better life. Unaccompanied and separated children also arrive in Europe seeking family reunification with family members already present. Children may be in transit from one EU country to another and their circumstances may also change over time e.g. they may be looking for family reunification and they may also have been trafficked.

Regardless of their nationality or immigration status or the category into which they fall, these children have common rights under the UN Convention on the Rights of the Child to special protection and assistance.

This EU Reference Document originates in the CONNECT Project, funded by the EU under a call for proposals for pilot projects on unaccompanied minors (2012), the funds for which had been allocated by the European Parliament. The Project focused on the wide range of actors involved in responding to the situation of unaccompanied children arriving in Europe and the issues with which they are engaged. The essential goal of the CONNECT Project was to examine the roles, responsibilities and resources of actors responding to the situation of these children and how they work together, by mapping the situation in four countries (the Netherlands, Italy, Sweden and the United Kingdom). The CONNECT Project also aimed at the development of several practical tools to support actors in working together to fulfil their EU obligations, in line with the UN Convention on the Rights of the Child. The results of the mapping and the development of the tools contributed to recommendations concerning how to ensure effective implementation and application of new EU obligations.

1.1 EU Law & Policy on Unaccompanied Children

This EU Reference Document was developed to provide a common and complete understanding of the scope of these obligations and supporting policy measures.

It is an opportune moment to create a compilation of the EU measures.

In recent years, the EU has adopted several legislative instruments directly addressing the situation of these children, including, most recently, the completion of the recast EU asylum instruments (2011-2013), EU Anti-Trafficking Directive (2011) and the EU Return Directive (2008). The European Parliament Resolution on the situation of unaccompanied children in 2013 called for “a handbook drawing together these various legal bases, addressed to Member States and to all practitioners, in order to facilitate proper implementation by Member States and to strengthen the protection of unaccompanied minors”.

Moreover, apart from establishing common legal safeguards for specific situations such as asylum and trafficking, the EU also plays a role in fostering an integrated approach to respecting and protecting the rights of unaccompanied and separated children, regardless of their status. Consequently, this Reference Document also serves as a compilation of the broad array of EU policy measures concerning unaccompanied children and practical measures of support from the EU agencies. In particular, the EU Action Plan on Unaccompanied Minors, adopted by the European Commission and welcomed by the Council in conclusions adopted in June 2010 set out a common approach “based on the respect for the rights of the child as set out in the EU Charter of Fundamental Rights and the UNCRC, in particular the principle of ‘the best interests of the child’ which must be the primary consideration in all action related to children taken by public authorities. It is fundamental to ensure that any child needing protection receives it and that, regardless of their immigration status, citizenship or background, all children are treated as children first and foremost.”

The EU Agenda on the rights of the child has also provided important impetus to the EU’s work in the field, including through ensuring a focus on children in justice proceedings concerning them. This Reference Document also identifies the growing support from the EU for the national child protection systems which play a central role in responding to children in vulnerable situations. In line with the EU Strategy on Eradicating Trafficking in Human Beings, the European Commission is currently developing guidance on the EU’s role in supporting child protection systems. The Annual EU Forum on the rights of the child in both 2012 and 2013 have contributed to the growing recognition of the EU role in contributing to national child protection responding to children in vulnerable situations, including workshops on children on the move.

In conclusion, the Reference Document should serve as a key resource for policy makers, practitioners and wide range of stakeholders in this field throughout the European Union.

1.2 Key Features of the EU Reference Document

The scope of the EU Reference Document covers:

  • All unaccompanied children of third country origin, whether they are seeking asylum, trafficked, seeking to reunite with family members, or in Europe for other reasons;
  • All relevant EU legal instruments addressing the situation of these unaccompanied and separated children;
  • Key EU legal instruments which may affect the protection of the rights of these children when involved in investigations and proceedings, in particular, focussing on sexual abuse and victims’ rights;
  • International law which informs the application of EU measures;
  • Jurisprudence of the European Court of Justice and the European Court of Human Rights directly focussing on the situation of unaccompanied children of third country origin;
  • Key EU policy discussions relevant to unaccompanied and separated children; and
  • EU practical measures, including the work of the EU agencies, which is directly relevant to these children.

The EU Reference Document can be used to support the work of both policy makers and practitioners regionally, nationally and locally and is drafted for use by both specialist and non-specialists. It provides a listing of relevant instruments as well as references to further useful background materials.

Whilst this Reference Document aims to identify the key EU measures relevant to unaccompanied children as of July 2014, it is not exhaustive. In particular it should be borne in mind that, alongside specific provisions relating to unaccompanied children, general EU provisions may also be relevant to their situation.

Out of scope

The EU Reference Document does not cover EU measures relating to unaccompanied children who are EU nationals; their situation is largely addressed by different EU policy areas. Nor does the EU Reference Document directly cover children of third country origin travelling with parents or adults responsible for them. Instead it focuses on the particular responsibilities arising where a third country national child in the EU is separated from their parents. However, all of groups of children share common rights as children, in particular, that their best interests are a primary consideration in all actions in their regard. Consequently, the Reference Document may be a useful source of inspiration on provisions that exist or might be envisaged for these other groups of children.

1.3 TERMINOLOGY

The term “child” is used throughout the Reference Document in line with the UN Convention on the Rights of the Child, with the following definition “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”

The term “unaccompanied and separated children” are used throughout this document in line with the definition provided in General Comment No. 6 of the UN Committee on the Rights of the Child, on the treatment of unaccompanied and separated children outside their country of origin, as follows: “Unaccompanied children” (also called unaccompanied minors) are children, as defined in Article 1 of the Convention, who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so. “Separated children” are children, as defined in Article 1 of the Convention, who have been separated from both parents, or from their previous legal or customary primary caregiver, but not necessarily from other relatives. These may, therefore, include children accompanied by other adult family members.

The term “minor” is defined under a number of EU asylum instruments as “a third country national or stateless person below the age of 18 years old”.

The term “unaccompanied minor” is defined under a number of EU asylum instruments as “a minor who arrives on the territory of the Member States unaccompanied by an adult responsible for him or her whether by law or by the practice of the Member State concerned, and for as long as he or she is not effectively taken into the care of such a person; it includes a minor who is left unaccompanied after he or she has entered the territory of the Member States.”

Other relevant definitions are contained in the Table of EU obligations.

1   In 2013, there were 12 690 asylum applications by unaccompanied children across the 28 Member States. Less data is available on unaccompanied children who are not applying for asylum but national statistics indicate that there are a significant number of these children, for example, exceeding in Italy and Spain together, 10 000 in 2013.