“Then I was enclosed in a small room... I could see faces of other young people in their own cells. We had a place to sleep, a cell, very hot, it had a toilet. My heart started to race in the room. I was worried. I didn’t know what was going to happen to me.”
These are the reminiscences of a seventeen-year-old boy who fled gang violence in El Salvador and came to seek protection in the United States, only to find himself in a detention center in Texas. His experience, along with those of the thousands of other children who cross borders unaccompanied or separated from their families in search of protection, is an indictment of a system of immigration control dominated by exclusionary concerns at the expense of human rights obligations. Stories such as the one above, of children in distress, withdrawn into deep depression, or paralyzed by acute anxiety, are commonplace.
Who are these children? What precipitates their condition, and what measures would improve these children’s access to meaningful and enduring protection? What legal obligations (both domestic and international) do states have to them? These questions motivated a two-year international research project - Seeking Asylum Alone - into the law, practice, and procedure governing access to refugee protection for unaccompanied and separated children. The study compared the circumstances in three developed destination states, the United States, the United Kingdom, and Australia, all countries where large numbers of unaccompanied children have arrived in recent years and where considerable legal and practical problems have arisen. This article provides a brief overview of the study’s findings: it investigates the protection deficit underlying access to child asylum, suggests some explanations for this deficit, and briefly suggests necessary reforms to enhance children’s rights in this context.
The Protection Deficit
In their seminal 1988 work on unaccompanied children, Ressler, Boothby, and Steinbock make the obvious point that wars, famines, and natural disasters have almost always resulted in children being separated from their families. Nothing much has changed since then. According to UNICEF, by the end of the Rwandan Genocide, over 100,000 children had been separated from their families; the conflicts in Yugoslavia, Afghanistan, Liberia, Sierra Leone, the Democratic Republic of Congo, Iraq, Iran, and Sudan have produced the same tragic legacy. Children seek refuge not just because they are separated from their families, but also because they are targeted by both intra- and inter-state violence. Worldwide increases in trafficking, global labor exploitation, and, more generally, family disruption contribute to the swelling ranks of unaccompanied and separated child migrants. But other factors are also at play. Some children flee abuse meted out to them by their families or communities, either in the form of child abuse, gang warfare, or unacceptable cultural norms. Thus, while some of the factors causing children to flee are common to adults, others are specific to children. Both categories of harm should provide the basis for successful asylum claims for affected children. In practice, however, neither does provide the basis for action.
This protection deficit arises despite the existing legal framework. There are international legal norms (translated into domestic laws) promoting refugee protection, the prohibition on torture or degrading treatment, and the enhancement of children’s rights. Asylum-seeking children can in theory benefit from the three central bodies of international law, which are refugee law, international human rights law, and laws of war. For example, the definition of a refugee in international law, set out in Article 1 of the 1951 UN Convention on the Status of Refugees, does not include any minimum age threshold, such that children are also included. States that have ratified the 1989 Convention on the Rights of the Child (all the UN member states except for the United States and Somalia) are obliged to specifically focus on states’ obligations to adopt “the best interests of the child” as a primary consideration in relevant policy. Many other international treaties, such as the 1966 International Covenant on Civil and Political Rights and the 1984 Convention Against Torture, include children within the overall scope of their jurisdiction and include measures that bear on states’ responsibilities towards child asylum-seekers (examples include the non-refoulement obligation and the duty to respect and protect family unity).
The real reasons for the disturbing and systematic protection deficit at the heart of the immigration systems of most destination states is a product of the political marginality of children, their lack of bargaining power, and their exclusion from decision-making processes. Correcting the deficit requires adequately understanding and addressing its causes. Scholars and child advocates, and of course children themselves, have long described and protested the skewed, adult-centered approach to social decision-making, resource allocation, and rights protection that render children’s interests peripheral at best. But the normal exclusion of children as a voiceless group within polities, even in advanced and self-proclaimed democracies, is compounded in the case of unaccompanied and separated migrant children by two aggravating circumstances – their non-citizen status and their lack of access to parental or other protective adult involvement. These migrant children thus labor under the triple burden of alienation, isolation, and minority status.
One of the starkest examples of the tension between state law enforcement mandates and a children's rights perspective is found in the asylum system. It is here that children regularly face insuperable hurdles and rights-violating procedures. Far from receiving compassionate or protective state intervention, many migrant children encounter punitive and degrading measures that cast them as delinquents and “urchins,” rather than as particularly vulnerable refugees.
Procedure and Protocol
Unsatisfactory procedures are neither new nor numerically insignificant. The United Nations High Commissioner for Refugees (UNHCR), the leading international agency charged with oversight of the protection of refugees and asylum seekers worldwide, as well as scholars and government officials, accept that unaccompanied or separated child migrants constitute between four and five percent of all asylum-seekers arriving in destination states. The majority are boys, and adolescents predominate over younger children. In 2003, 12,800 unaccompanied and separated children applied for asylum in the 28 European countries for which the UNHCR collected statistics. In that year, out of 49,405 asylum seekers in the UK, 3,180 were children. No comparable figures are available for the United States; but in 2004, the US Office of Refugee Resettlement received referrals of 6,200 unaccompanied and separated children. One of the key difficulties of developing and monitoring policy and improving practice in this area is the lack of governmental records.
This information deficit, which reflects the low political priority accorded the problem, is compounded by two other serious gaps: the lack of adequate mechanisms for determining a child's age where this is disputed and the absence of clear protocols for identifying children who, while not traveling alone, are separated from parents or guardians. Neither of these shortcomings is “merely” procedural. Like so many grave issues in human rights protection, their apparent banality masks compelling and potentially harmful risks, and indeed, both shortcomings have had serious impacts on the treatment of child asylum-seekers. They result in children being incarcerated without charge or trial in adult detention facilities in violation of international legal norms; and they result, despite the plethora of international anti-trafficking measures and laws, in large numbers of trafficked or otherwise vulnerable children slipping through states’ safety nets and into danger.
In many asylum destination states, age disputes have resulted in children being wrongly detained with adults, sometimes for lengthy periods. This is a particularly striking problem in the UK, where according to the British Refugee Council, six out of the nine children interviewed in depth about their experiences of the asylum determination process had initially been age disputed. Between 2002 and 2005, the percentage of unaccompanied or separated children granted asylum was consistently a percentage point lower than the comparable percentage of adults.
A second serious shortcoming in the handling of child asylum cases is the absence of clear definitions and procedures for identifying separated children traveling with non-parental adults, including smugglers or traffickers. Where immigration or border patrol officers are confused or vague about how to investigate the bona fides of an adult claiming to “accompany” a non-related child, the protection deficit easily occurs. For example, Border Patrol agents in the United States lack clear instructions on how to check relationships, probe situations which appear unconvincing, and when to call in child welfare experts with professional competence to make these difficult decisions. This administrative sloppiness continues to hamper the detection of trafficked children and to reduce the number of children who receive appropriate protection from exploitative smugglers or traffickers. The measures introduced to provide protection to child victims of trafficking are scarcely used, and the vocal political condemnations of the evils of trafficking do not translate into deliverables for the most vulnerable victims on the ground.
It is not just the initial classification system that is deficient. Reception procedures and access to legal protection, guardianship, and mentoring before, during, and after the complex asylum process are all inadequate. As a result, many children fall between the cracks and miss the opportunity to claim asylum altogether, either by being screened out of protection systems or by being pressured into “voluntarily” accepting return to their country. In the absence of clear and competent advice and faced with enforcement-minded and untrained government officials, it is not surprising that most unaccompanied and separated asylum seeking children do not know what they are applying for or what process they are entering.
In sharp contrast to what the framers of the Refugee Convention or the Children’s Rights Convention aspired to, the process of seeking asylum is generally mysterious at best, often provoking deep anxiety and trauma. In the United States, unaccompanied or separated children are placed in the care of the immigration enforcement authorities without any access to child welfare services, legal advice, or representation for the first 72 hours. Recent research shows that within these first three days, many children agree to "voluntary departure" without the benefit of legal advice, because they find the prospect of prolonged detention alarming and they lack legal advice about their options. In the case of Mexican children, they may simply be returned across the US-Mexico border without formality or any record of their arrival. Even those who get through this hurdle have problems securing adequate assistance. Surprisingly perhaps, they have no entitlement to free legal representation.
Even when child migrants do manage to penetrate through to the asylum adjudication procedures, children confront serious legal difficulties in translating the promise of protection into reality. Researchers and practitioners concur that a pervasive "culture of disbelief" characterizes official attitudes to unaccompanied or separated children, and that this outlook undermines confidence in the proceedings. Often, the official presumption, on the part of decision makers at all levels of the system, is that a child’s testimony and/or documents are false and that inconsistencies in the relaying of personal information are indications of deceit rather than anxiety, ignorance, or faulty memory. A traumatized, unaccompanied child should not be interviewed about the flag of his country nor be asked to draw a map of his voyage in order to gain asylum, as is actually practiced.
Several fundamental reforms would radically improve the fairness of the current asylum system for children and remove at least part of their triple burden. First, access to trained specialist legal representatives at all stages of the asylum system is essential. Without this guarantee of professional assistance, improvements in legislation and official procedures will fail to yield substantial results. Second, all unaccompanied and separated children should have access to a trained guardian throughout the asylum process, from the time of their entry into the destination state until the final resolution of their case has been decided. This consistent, parent-like mentoring, supervision, and support is crucial to the welfare of the child, to the avoidance of re-traumatizing children, and to the equitable and transparent working of the asylum system.
Aside from these procedural changes, decision makers, both within the government administrative system and within the courts, must make adequate use of the legal framework available for the protection of asylum-seeking children. Children, like women, may face persecutory harms that are comparable to those facing adult men. But – and this is the key and neglected point – they may face novel and distinctive harms which are specific to their demographic and social status. A decision-making system that relies on an adult-centered metric will wrongly exclude child asylum-seekers with valid claims. Many children suffer persecution for child-specific reasons, such as the risk of conscription as a child soldier, the threat of a forced marriage, the dangers arising from rejecting gang membership, and the threat of child abuse and incest.
So far, policymakers are reluctant to acknowledge that the conduct in question constitutes "persecution" as interpreters of the UN Convention on the Status of Refugees have generally construed it. This parallels the difficulties female asylum seekers had in establishing that rape, sexual violence, or domestic abuse were capable of amounting to “persecution” which could ground a refugee claim. These claims have now been established and can form the basis of a comparative argument that can benefit child asylum-seekers. The grant of asylum under the Refugee Convention to unaccompanied child applicants should not continue to represent the exception rather than the rule. Nor should child migrants continue to encounter the paradoxical yet pervasive situation, where their particular and distinctive suffering and needs are discredited and disbelieved (because they are seen as being “like adults”), and yet their reliability and veracity are impugned (because they are children and therefore unreliable).
Clearly the serious protection deficit annually facing tens of thousands of unaccompanied and separated child asylum-seekers urgently requires rectification. It has led to troubling and predictable human rights violations against children, including prolonged detention, unjustified refusal of refugee protection, worrisome return or refoulement of asylum seeking children back to persecuting states, and failures to protect children being trafficked into destination states for exploitation. Many unaccompanied and separated child migrants have a stronger claim to asylum than is generally recognized or acknowledged, because their child-specific persecution can be adjudicated within the already established and accepted framework of international refugee law as enacted in domestic law. Moreover, their urgent need for skilled legal representation and specialized guardianship are protections already envisaged in international law instruments such as the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child cited above. The UNHCR, the UN agency charged with overseeing implementation of the 1951 Convention on the Status of Refugees (as amended) has been calling for these measures for years.
Some states, such as the UK, France, and Canada, already guarantee free legal representation to unaccompanied and separated children and reject detention of asylum seeking children as unacceptable. But other states, such as the United States and Australia, lag behind, so far failing to institute free legal representation and abolish the use of detention for unaccompanied and separated children. Most states have yet to accept and vigorously develop the concept of child-specific persecution as it applies, for example, to the experiences of child asylum seekers fleeing forced armed recruitment, gang violence, female circumcision, or forced marriage. Instead of ignoring children's claims, policymakers, administrators, and immigration judges need to switch from the adult-focused lens through which they miss the opportunity to listen to (and even to elicit) the factual basis for children’s asylum claims to a more child-specific approach.
None of the suggested reforms above involve open door immigration policies or reckless incentives to use children as migration anchors or investment commodities. Nor do they necessarily promote the long-term care of asylum seeking children within the destination state. In many cases, a more child-focused asylum system, such as that advocated here, would allow for the speedier assessment of cases in which return is a viable and rights-respecting option. In all cases, the views of the children in question need to be elicited with care. Trafficked children and children destined to bonded domestic service or other forms of forced labor should be entitled to effective state intervention instead of the current vacuum of illegality or irregularity into which most unaccompanied and separated children slip. Where children clearly lack protection at home, however, they should be granted asylum or analogous and permanent protection in the destination state. In this way, the lofty aspirations of the Refugee Convention and the Convention on the Rights of the Child, as well as the noble sentiments that form the basis of much democratic policy making, will come some steps closer to realization.