Across the globe, sizeable numbers of children and adolescents participate in cross-border migration. Their circumstances are varied, as are their needs for international legal protection. While many young people cross borders together with their parents or other relatives, a significant proportion travel completely alone or in the company of unrelated adults, including
International Legal Protections for Child and Adolescent Migrants
Child migrants, whatever their circumstances, are eligible for a broad range of international human rights protections. These protections derive from a substantial body of international legal instruments that together constitute the contemporary human rights regime. The laws include general conventions protecting all people’s civil and political rights, such as the right to a fair trial, the right to freedom of religious belief, and the right to be protected from discrimination because of one’s race, nationality, gender or other social status.
All the rights just mentioned, and others relevant to child migrants have been codified in a single instrument, the 1989 UN Convention on the Rights of the Child (CRC). It is this international document, in practice, that provides the key reference point for the protections to which child migrants are entitled – whether these children are asylum-seekers or survivors of trafficking, whether they are accompanied by parents or traveling alone, whether they have a regular immigration status or are undocumented, whether they are toddlers or teenagers. By bringing together all the existing human rights relevant to children in one document, the CRC affords a convenient reference point for the framework of laws and policies available. Moreover, the expert body that oversees implementation of the CRC, the Committee on the Rights of the Child, is, through the “General Comments” that it produces from time to time, an important source of interpretation of the rights in the convention, and of commentary on particular human rights challenges facing children. General Comment No. 6 in particular addresses the “Treatment of Unaccompanied and Separated Children Outside their Country of Origin”.
Among the many international legal protections to which child migrants are entitled, some of the most critical derive from fundamental principles applicable to all children and binding on all states that have ratified the CRC (all states in the world except for the United States). Three are worth highlighting. The first is the non-discrimination principle, which prohibits states from treating children differently because of their citizenship or national origin or legal status.
Apart from these general principles, migrant and refugee children are protected by more specific provisions that are particularly relevant to their needs. For example, the CRC sets out in detail the rights of asylum-seeking and refugee children, including the right to “appropriate protection and humanitarian assistance”, to assistance in tracing family members if separated from them, and to “the same protection as any other child …deprived of family environment”.
These international principles and the explanatory framework related to them have been incorporated into many domestic and regional regimes. The most extensive regional system addressing rights of child migrants is that of the European Union. Its first concentrated focus on protection of child migrants dates back to a 2010 Action plan designed to ensure legal representation, guardianship and protection from detention for migrant children. More recently, in June 2017, the Council of the European Union has Externer Link: adopted measures on these topics prepared by the European Commission. The EU has also incorporated child rights principles into its policies regarding border controls and reception (housing) of asylum-seekers.
Several civil society organizations have built on the foundations of international law to generate guidelines and recommendations for managing child migrant and refugee cases. A useful Externer Link: compilation of the basic principles relevant to the treatment of these children has been widely circulated and approved by many of the key international and non-governmental organizations working in the child migration space. The basic principles include the stipulation that migration management measures are not to violate children's human rights.
Do States comply with these regulations protecting migrant children or do migration control interests dominate their practice?
Despite the robust edifice of applicable international law protecting the rights of migrant and refugee children, many human rights violations continue to severely affect their lives. Across the globe, whether they are living in refugee camps or in big metropolitan centers, whether they are accompanied by family members or surviving on their own, whether they are still in transit or have arrived at their destinations, many migrant and refugee children face enduring hardship. The most dramatic evidence of rights lacunae is the high number of child migrant fatalities – children represented over 30 percent of the recorded deaths in the Aegean Sea in 2015; many children also die in deserts attempting entry to the US via Mexico, or in sub-Saharan Africa seeking safety away from home. Over 1,200 deaths of children have been recorded by the
For children who survive the initial journey from home, other lacunae in protection exist. Detention of child migrants, to deter future arrivals and enable repatriation, continues to be a pervasive problem, despite the growing acceptance of the norm that child detention should only be used as a last resort and in the least restrictive circumstances for children affected by migration. In part children are detained because their claim to be minors is challenged by states, and unsatisfactory age determination procedures are used to assess their age, resulting in incarceration until successful appeals against incorrect age determination are held. Even when they are not incarcerated, many migrant and asylum-seeking children find themselves in harsh environments – in camps where they lack educational opportunity or inspiring future prospects, in urban settings where they have difficulty accessing quality schools, apprenticeships or job training options, in shelters where they experience isolation and often depression. The facilities for inclusion, physical and mental support and educational advancement that the CRC mandates are often elusive in practice, not a priority for states contending with xenophobic electorates and calls for migrant exclusion.
Despite these challenges, some positive developments are also evident. Across the globe, child migrants are beginning to organize and articulate their opinions and wishes. The most obvious example of this is the Externer Link: "daca-mented" movement of young people in the US, who lack a regular immigration status but are claiming a right of legal inclusion in the country based on their long history of residence and participation as de facto Americans. Other examples of child migrant agency are the Externer Link: demonstrations by Afghan youth in Sweden, the engagement of migrant and refugee youth in social media and broadcasting activities in
Moreover, with the United Nations involved in debating a new architecture for international migration and refugee management through the development of two global compacts (one on refugees and one on migrants), one can hope that the rights and the voice of the youngest migrants will receive the prominence and protection they deserve and that finally the strong legacy of international human rights laws will translate into rights-based practice on the ground. Only then will the early aspirations of inclusion, non-discrimination and best interests protection for all children be realized.
Jacqueline Bhabha (2018): Can we solve the migration crisis? Cambridge: Polity Press.
Jacqueline Bhabha, Jyothi Kanics and Daniel Senovilla-Hernandez (ed.) (2018): Research Handbook on Child Migration. Edward Elgar Press. (to be released in August) Jacqueline Bhabha and Vasilea Digidiki (o.D.): Emergency within an Emergency: The growing epidemic of sexual exploitation and abuse of migrant children in Greece, Externer Link: https://reliefweb.int/ (accessed: 7-16-2018).
Jenny Erpenbeck (2017): Go, Went, Gone. New York: New Directions. (Novel)
Roberto G. Gonzales (2016): Lives in Limbo: Undocumented and Coming of Age in America. Oakland: University of California Press.
Human Rights Watch (2018): World Report 2018. Externer Link: https://www.hrw.org/world-report/2018 (accessed: 7-16-2018).
Sonia Nazario (2014): Enrique's Journey: The Story of a Boy's Dangerous Odyssey to Reunite with His Mother. New York: Random House.
UNICEF Externer Link: https://www.unicef.org/
UNHCR Externer Link: http://www.unhcr.org/
International Organization of Migration (IOM) Externer Link: https://www.iom.int/
Migration Policy Institute Externer Link: https://www.migrationpolicy.org/
This article is part of the policy brief on