Art.22 Refugee Children
Jason M Pobjoy
Edited By: John Tobin
1. State Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.
2. For this purpose, States Parties shall provide, as they consider appropriate, co-operation in any efforts by the United Nations and other competent intergovernmental organizations or non-governmental organizations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.
The international community’s long-standing recognition that refugee children are entitled to special protection finds expression in article 22 of the Convention on the Rights of the Child (‘CRC’, ‘the Convention’).1 That provision deals exclusively with a specific subset of children: refugee children and children seeking refugee status. Article 22(1) provides that these children, whether accompanied or unaccompanied, must ‘receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties’.
Article 22(2) contains provision for tracing a refugee child’s parents or other members of her family, and for alternative care arrangements where no family members can be located. The inclusion of article 22 in the CRC is largely unsurprising given both the international community’s recognition that refugee children have distinct vulnerabilities and developmental needs and the reality that over half of the world’s refugees are children.2 Although the general tenor of article 22 is clear, the precise scope and content of the provision have received relatively limited attention. The provision is often mischaracterized as offering little more than window dressing, rather than guaranteeing any additional rights for refugee children or children seeking refugee status. In fact, a careful reading of article 22 makes clear that the provision has enormous potential to secure protection and assistance for one of the most vulnerable groups of children in our society.
A. The Special Protection of Refugee Children
International law has long recognized that refugee children are entitled to special care and protection. The Geneva Declaration of the Rights of the Child (the ‘1924 Declaration’)3 arose out of a concern about the particular problems faced by children during and subsequent to war.4 A similar theme runs throughout the 1949 Geneva (p. 820) Conventions.5 The Geneva Convention Relative to the Protection of Civilian Persons in Time of War (‘Fourth Geneva Convention’) provides, for instance, that:
The Parties to the conflict shall take the necessary measures to ensure that children under fifteen, who are orphaned or are separated from their families as a result of the war, are not left to their own resources, and that their maintenance, the exercise of their religion and their education are facilitated in all circumstances.
The Parties to the conflict shall facilitate the reception of such children in a neutral country for the duration of the conflict.6
The need to prioritize the protection of refugee children has since been affirmed repeatedly by the United Nations General Assembly,7 and United Nations High Commissioner (p. 821) for Refugees (‘UNHCR’),8 the United Nations body with supervisory responsibility for the implementation of the Convention Relating to the Status of Refugees and the attendant Protocol Relating to the Status of Refugees.9
The CRC represented a critical milestone in securing special protection measures for refugee children and children seeking refugee status. The CRC’s preamble notes that, ‘in all countries in the world, there are children living in exceptionally difficult conditions, and that such children need special consideration’. Not least among these are refugee children; a point that was repeatedly emphasized by the drafters of the CRC.10 The rights contained in the CRC apply to all children in the jurisdiction of a State Party, including refugees, children seeking refugee status, and children refused refugee status, and these children are entitled to benefit from the provisions of the CRC to the same extent as a citizen child.11 These children also have the additional benefit of article 22, (p. 822) which transposed the international community’s recognition that refugee children require special protection into an extant treaty-based mechanism that guaranteed that protection. Article 22 still remains the only provision in any international human rights treaty that deals expressly with the situation of refugee children and/or children seeking refugee status.
B. The Relationship between the CRC and the Refugee Convention
Article 22 must be read within the context of the broader framework of the international system of refugee protection. The Refugee Convention is the centrepiece of that framework, appropriately described as ‘the cornerstone of the international refugee protection regime’.12 The Refugee Convention sets a binding definition as to who is entitled to recognition as refugees, and thus to the surrogate protection of a host state. The Refugee Convention article 1A(2) definition provides that a person is a refugee where the individual has a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’. Articles 3–34 of the Refugee Convention outline a comprehensive set of rights that attach to all refugees including freedom from discrimination (art 3), access to courts (art 16), access to housing (art 21), access to public education (art 22), freedom of movement (art 26), and the protection against refoulement (art 33).
The mandate of the Refugee Convention is age-neutral, applying to all individuals irrespective of age and containing no express reference to, or provision for, refugee children.13 The drafters’ consideration of the special protection needs of refugee children is, however, reflected in the summary of conference proceedings appended to the Refugee Convention which provides for ‘[t]he protection of refugees who are minors, in particular unaccompanied children and girls, with special reference to guardianship and adoption’.14 (p. 823) Although not binding, the declaration provides a compelling affirmation of the responsibility of states to take special measures to protect refugee children.
Following the adoption of the CRC, the UNHCR began to promote the CRC as the appropriate framework for conceptualizing the special protection needs of refugee children.15 Jeff Crisp, the former head of UNHCR’s Policy Development and Evaluation Service, has suggested that that agency’s policies on refugee children ‘owe a self-evident intellectual debt’ to the CRC.16 This intellectual debt is evident in the ‘UNHCR Policy on Refugee Children’ published in August 1993.17 The policy expressly notes that the CRC ‘provides a comprehensive framework for the responsibilities of its State Parties to all children within their borders, including those who are of concern to UNHCR. Moreover, as a United Nations convention, it constitutes a normative frame of reference for UNHCR’s action’.18
The ‘UNHCR Policy on Refugee Children’ was welcomed by the UNHCR Executive Committee (‘ExCom’), which stressed the ‘importance of the [CRC] as a normative framework for action to protect and care for children of [UNHCR’s] concern’.19 In its 1997 Conclusion on refugee children the ExCom reaffirmed ‘the fundamental importance of the [CRC] to the legal framework for the protection of child and adolescent refugees and for promoting their best interests’20 and called upon UNHCR ‘to continue to integrate fully the rights of the child into its policies and programmes’.21 In its most recent Conclusion on refugee children the ExCom emphasized the need for a ‘rights-based approach, which recognizes children as active subjects of rights’22 and underlined that the ‘CRC provides an important legal and normative framework for the protection (p. 824) of children’.23 UNHCR’s ‘Guidelines on International Protection: Child Asylum Claims under Article 1A(2) and 1F of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees’ (‘2009 Guidelines’) similarly emphasize that the substantive and procedural aspects of the assessment of a child’s application for refugee status should be informed by the CRC, and, in particular, the four guiding principles for its implementation identified by the UN Committee on the Rights of Children (‘CRC Committee’, ‘the Committee’ ).24
C. Key Issues
The starting point in interpreting and applying article 22 is a consideration of the scope of the right. Article 22(1) applies both to refugee children and to children seeking refugee status. Article 22(2) applies to the same beneficiaries (hence the reference to ‘such children’), save for the requirement to cooperate in respect of tracing and family reunification, which only applies to refugee children. Although article 22 does not contain a definition of a ‘refugee child’, there is a compelling argument that the duty to ensure that a child seeking refugee status receives ‘appropriate protection’, requires that article 1 of the Refugee Convention be interpreted in such a way that takes into account the distinct rights and interests of the child applicant. In circumstances where article 22 is engaged, it is necessary then to engage with what the obligation to take appropriate measures to ensure that a refugee child or child seeking refugee status receives the appropriate level of protection and humanitarian assistance entails. Article 22 extends beyond simply guaranteeing beneficiaries of article 22(1) enjoyment of ‘applicable rights’ on a non-discriminatory basis, but imposes a further requirement on states to take into account any additional protection and humanitarian assistance that a refugee child or a child seeking refugee status may, on account of their distinct vulnerabilities and development needs, require in order to effectively enjoy those rights. This ‘rights-plus framework’ gives expression to the long-standing recognition that refugee children are entitled to special protection, and demonstrates the important role that article 22 may play in securing that protection.
A. Scope of the Right
Article 22(1) applies both to a child who is considered a refugee in accordance with applicable international or domestic law and to a child seeking refugee status.25 The provision applies irrespective of whether the child is accompanied or unaccompanied. Three preliminary observations can be made as to the beneficiaries of the article 22(1) (p. 825) obligation. First, whether a child is considered to be a refugee is to be determined ‘in accordance with applicable international or domestic law and procedures’26 Although the Refugee Convention will generally provide the appropriate starting point, where a state is not party to the Refugee Convention, or where a regional or domestic instrument affords a greater level of protection (eg a broader refugee definition, such as that contained in the OAU Convention27), it will be necessary to consider whether the child would be considered a refugee under those instruments.28 Secondly, the use of the conjunctive ‘or’ affirms the well-established principle that status as a refugee is not dependent on a domestic determination of refugee status.29 Hence, the fact that a child is not considered a refugee under domestic law will not preclude a child from the protection of article 22(1) where that child is a refugee under the Refugee Convention. Thirdly, article 22(1) applies in any event not only to children who are considered to be refugees, but also to children who are seeking refugee status. This extended scope has important consequences, discussed in further detail below.
1. A Refugee Child
Article 1A(2) of the Refugee Convention defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
In order to be recognized as a refugee under the Refugee Convention, a child needs to satisfy each element of the article 1 refugee definition:30 (a) she must be outside her country of origin; (b) due to a genuine risk; (c) of serious harm; (d) resulting from a failure of state protection; (e) that is causally connected to one of five enumerated forms of civil or political status; and (f) she must be in need of, and deserving of, protection. Although not examined in detail here, the OAU Convention and the Cartagena Declaration contain a similar refugee definition, however both instruments go further and extend protection to groups of persons fleeing widespread man-made occurrences.31 At the European level, the EU Qualification Directive, which is expressly subordinate to the Refugee Convention, contains a broadly comparable refugee definition.32
(p. 826) Article 22 of the CRC does not contain a definition of a ‘refugee child’.33 During its drafting, several delegates suggested that it should contain a bespoke definition,34 however the majority considered that this would be inappropriate given it would require a corresponding amendment to the Refugee Convention.35 There remains a compelling argument that the duty to ensure that a child seeking refugee status receives ‘appropriate protection’ requires a state to give consideration to the fact that the beneficiary of protection is a child, which in turn requires that the article 1 definition be interpreted in such a way that takes into account the distinct rights and interests of the child applicant. By way of illustration, a state’s duty to afford a child ‘appropriate protection’ may require a consideration of the extent to which the child’s rights under the CRC will be threatened if she were to be returned to her country of origin; it is difficult to appreciate how ‘protection’ could be characterized as ‘appropriate’ if any decision as to protection failed to take into account the specificity of the intended beneficiary and the distinct subset of rights that a state owes to a child. Article 22 thus provides a principled basis for drawing on the CRC as an aid to inform the interpretation of the Refugee Convention article 1 definition in claims involving children.
The argument that the article 1 definition should be interpreted by reference to the CRC finds clear support in the rules of international treaty interpretation, and in particular the requirement that the Refugee Convention be interpreted in light of its humanitarian object and purpose,36 and taking into account any relevant rules of international law applicable in the relations between the parties.37 Both UNHCR and the CRC Committee have also issued guidance that promotes interaction between the Refugee Convention article 1 definition and the CRC. The Committee has noted the need to ‘take into account the development of, and formative relationship between, international human rights and refugee law’ and that ‘the refugee definition [of the 1951 Convention] must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children’.38 UNHCR has similarly observed that ‘[in] determining the persecutory character of an act inflicted against a child, it is essential to analyse the standards of the CRC and other relevant international human rights instruments applicable to children’.39 The discussion that follows is a necessarily brief account of the key obstacles that a child may face in satisfying the (p. 827) criteria prescribed under the Refugee Convention (and hence also the comparable definitions contained in the regional refugee definitions).40
The Refugee Convention’s requirement that a child be outside her country of origin excludes from protection children who are at risk but still within their country of origin (internally displaced children). In this respect, the African Charter on Rights and Welfare of the Child (‘ACRWC’) affords greater protection than either the Refugee Convention or article 22 of the CRC. Article 23(4) of the ACRWC provides that the protections afforded to refugee children or children seeking refugee status apply ‘mutatis mutandis to internally displaced children whether through natural disaster, internal armed conflicts, civil strife, breakdown of economic and social order or howsoever caused’.41 As a matter of international law, a refugee is not under a duty to seek protection in the first country in which she arrives;42 there are often very good reasons why an individual, and particularly children, will not seek protection in the first country of arrival. Although states may in certain circumstances send a refugee to a non-persecutory state (including, for instance, the state of first arrival), domestic and regional courts have appropriately recognized that any removal decision must be guided by the best interests principle in article 3 of the CRC.43
In order to satisfy the genuine risk requirement, an applicant must demonstrate both subjective fear and an objective risk of prospective harm. The subjective element has raised a number of issues for children, who, for various reasons, are often unable to (p. 828) conceive or to articulate a future apprehension of harm.44 The consequence of insisting that a child prove subjective fear is that the child’s claim may get rejected even though she is, as a matter of objective evidence, actually at risk of harm. In order to avoid this scenario, decision makers have developed a variety of strategies to circumvent the Refugee Convention’s purported45 insistence on evidence of subjective fear. The first strategy is to impute fear from the parent to the child ‘[w]hen the parent or caregiver of a child has a well-founded fear of persecution for their child, it may be assumed that the child has such a fear, even if s/he does not express or feel that fear’.46 The second strategy has been to dispense with the subjective requirement altogether in cases involving children where ‘a child is unable to express fear when this would be expected or, conversely, exaggerates the fear … decision makers must make an objective assessment of the risk that the child would face’.47
A child will be a refugee only if she is at risk of a form of harm that constitutes a risk of ‘being persecuted’. The phrase ‘being persecuted’ is widely understood as requiring evidence of the ‘sustained or systemic violation of basic human rights demonstrative of a failure of state protection’.48 The CRC has a particularly critical role to play in identifying those forms of harm that satisfy the persecutory threshold in claims involving children. The rights protected under the CRC are especially tailored to take into account the reality that children experience harms in different ways to adults. The CRC thus provides an automatic and principled means for adapting the persecutory threshold to take into account a child’s heightened sensitivities and distinct developmental needs. Indeed, in circumstances where an overwhelming majority of states have acknowledged that children have a distinct set of human rights, it becomes difficult to justify a failure to engage with the rights enshrined in the CRC when applying the ‘being persecuted’ standard to children. As the Federal Court of Canada has stated:
If the CRC recognizes that children have human rights and that ‘persecution’ amounts to the denial of basic human rights, then if a child’s rights under the CRC are violated in a sustained or systemic manner demonstrative of a failure of state protection, that child may qualify for refugee status.49
The Court went on to say:
To acknowledge that children have distinctive rights is not to graft additional rights onto the [Refugee Convention definition], but is instead to interpret the definition of ‘persecution’ in accordance with the distinctive rights that children possess, as recognized in the CRC …
[T]herefore, when determining whether a child claiming refugee status fits the definition … decision makers must inform themselves of the rights recognized in the CRC. It is the denial of these rights which may determine whether or not a child has a well-founded fear of persecution if returned to his or her country of origin.50
A contemporary and child-sensitive understanding of persecution encompasses many types of human rights violations, including violations of child-specific rights. In determining the persecutory character of an act inflicted against a child, it is essential to analyse the standards of the CRC and other relevant international human rights instruments applicable to children.51
A consideration of the availability of state protection is an integral element in assessing whether the ‘being persecuted’ standards have been met. This follows from the fact that in international human rights law a violation of a human right can, by definition, only occur where the state has failed in its duty to protect an individual. Three issues are particularly relevant in claims involving children. First, there can be a failure of state protection even where the risk emanates from a private actor, so long as there is evidence that the state will not or cannot respond to the risk. This is particularly critical in claims involving children where the agent of persecution is frequently a non-state actor. A child at risk of domestic violence may therefore satisfy the refugee definition if the country of origin has failed to satisfy its protective obligations required under article 19 of the CRC. By way of illustration, in a case involving a 14-year-old Polish boy at risk of parental abuse, the Canadian Immigration and Refugee Board acknowledged the fact that Poland had ratified the CRC, criminalized domestic child abuse, and introduced legislation providing for the appointment of an Ombudsman for children’s rights; however, it considered that these efforts were countered by evidence suggesting that child abuse was infrequently reported and that convictions for child abuse were rare. The Court considered that this evidence demonstrated that ‘protective measures [were] not effectively in place’.52 Secondly, it will generally be inappropriate for a decision maker to draw an inference about the availability of state protection from the fact that a child has not previously sought protection from state authorities.53 A child cannot be expected to approach the state for protection if it would be impractical, futile, or otherwise unreasonable for them to do so. As the Canadian Federal Court has observed ‘[t]he reasonableness of the applicants’ willingness to seek protection … must be assessed in light of their status as minors’.54 Thirdly, in assessing whether a child has an internal protection alternative in her country of origin, a decision maker must have regard to the applicant’s age, and, in particular, whether relocation would be in the best interests of the child.55
(p. 830) In addition to establishing a risk of ‘being persecuted’, the Refugee Convention also requires an applicant to demonstrate that the risk accrues ‘for reasons of’ one of the five enumerated grounds of civil or political status. All five of the grounds may apply in claims involving children, although three have given rise to specific issues: ‘political opinion’, ‘religion’ and ‘membership of a particular social group’. As to ‘political opinion’, there has been an unfortunate tendency for decision makers to treat children as apolitical: incapable of expressing political views or engaging in political activity.56 The assumption that political identity and activity are the exclusive province of adults is impossible to reconcile with the reality that children can be politically active and targeted because of that activity. Indeed, both articles 12 and 15 of the CRC imply that children have a right to express political opinion and to engage in political activity. This is now acknowledged in UNHCR’s 2009 Guidelines, which underline that ‘children can be politically active and hold particular political opinions independently of adults … for which they may fear being persecuted’57 and that ‘[d]ismissing a child’s claim based on the assumption that perpetrators would not take a child’s views seriously or consider them a real threat could be erroneous’.58 As to ‘religion’, in line with the broad scope of religious freedom under international human rights law, a child may be at risk of being persecuted not only because of what the child does believe, but also because of what the child does not believe. A child may, for instance, be at risk because she has refused to engage in mandated religious education, to undergo traditional religious practice, or to submit to other religion-inspired restrictions or demands.59 Finally, the ‘membership of a particular social group’ ground has proven the most critical but also the most challenging ground for children seeking to establish entitlement to refugee status.60 Decision makers have appropriately recognized particular social groups defined in whole or in part by a child’s age. The first and more straightforward route is to define the putative group exclusively by reference to a child’s age. In Canada, for instance, decision makers have recognized ‘children’,61 ‘minors’,62 and ‘minor children’63 as particular social groups. The second, more common (p. 831) method is to define the group by reference to the child’s age plus some other characteristic (eg ‘unaccompanied children’, ‘orphaned children’, ‘abandoned children’, ‘girl children’, ‘children with a disability’, ‘hei haizi’, ‘gay, bisexual and transgender children’, ‘children resistant to gang-recruitment’). This approach is appropriate where it is an intersection of factors, including the child’s age, which explains the reasons why the child will be exposed to a risk of being persecuted if returned to her country of origin.64
Although the exclusion clauses in article 1F of the Refugee Convention apply in principle to children, particular care should be exercised in applying the provisions to child applicants. In particular, the exclusion provisions can only apply where a child has reached the age of criminal responsibility.65 For children over the minimum age ‘the emotional, mental and intellectual maturity of any child … would need to be evaluated to determine whether s/he had the mental capacity to be held responsible for a crime within the scope of Article 1F’.66
As the High Court of England and Wales has held:
What might be right for an adult is not always replicated for a child or young person. A carefully calibrated decision needs to be made depending upon the age and maturity of the child or young person in question coupled with an analysis of the factual and circumstantial matrix taken as a whole.67
Throughout the refugee status determination process a child should be afforded a liberal benefit of the doubt. The benefit of the doubt principle was first endorsed by UNHCR in its Handbook, which advised that: ‘if the applicant’s account appears credible he should, unless there are good reasons to the contrary, be given the benefit of the doubt’.68 This general principle is reinforced in the context of child applicants, with the Handbook suggesting that the assessment of a child’s refugee status ‘may call for a liberal application of the benefit of the doubt’.69 This principle has since been explicitly endorsed in guidelines in the United States70 and the United (p. 832) Kingdom,71 with the latter providing that ‘[t]he benefit of the doubt will need to be applied more generously when dealing with a child, particularly where a child is unable to provide detail on a particular element of their claim’.72
As a matter of practice, the principle requires that a child should be afforded evidential concessions consistent with the individual child’s age and evolving developmental capacities.73 So, if a child presents a cognizable claim that is, taking into account the child’s age and developmental capacities, ‘on balance, capable of being believed’,74 this should be sufficient for the purposes of establishing refugee status. This standard may be satisfied by the applicant’s written or oral testimony, by testimony from lay or expert witnesses (such as a parent), by reference to independent and reliable country of origin information, or by a combination of these sources. Importantly, even where a child, or the child’s parent or designated representative, is disbelieved, the requirement that the child be afforded a liberal benefit of the doubt does not fall away. The refugee status determination process is a process for ‘arriving at the best possible understanding of the facts in an inherently imperfect environment’ and ‘[i]t does not punish or disadvantage vulnerable people because they have made false or inconsistent statements, or are believed to have done so’.75 A child’s testimony is just one means of addressing the ultimate question of whether the child is eligible for international protection. If other evidence is available that supports a conclusion that the child is genuinely at risk of being persecuted, such as reliable country of origin information, then refugee status ought to be recognized irrespective of any adverse credibility finding.76
As noted above, article 22(1) applies not only to children who are considered to be refugees, but also to children who are seeking refugee status. The more expansive scope has two important consequences. First, it provides for equal treatment between refugees and children seeking refugee status, and makes clear that children who are awaiting a domestic determination as to refugee status remain eligible not only to the full range of rights protected under the CRC, but also to the additional safeguards enshrined in article 22. Secondly, and related, the emphasis on protection for children seeking refugee status draws attention to the importance of looking to other independent or complementary forms of international protection, both under the CRC and international human rights law more broadly, where a child is not eligible for refugee status. As the CRC Committee has observed, where ‘the requirements for granting refugee status under the [Refugee Convention] are not met, unaccompanied and separated children shall benefit from available forms of complementary protection to the extent determined by their protection needs’.77
If a child is ineligible for refugee status, a decision maker must therefore consider both the non-refoulement obligation implicit in, at the very minimum, articles 6 and 37 of the CRC, in addition to the more embryonic form of international protection enshrined in article 3 of the CRC. As to the child-specific non-refoulement obligations, the Committee has underlined that a state shall not return a child to her country of origin where there are ‘substantial grounds for believing that there is a real risk of irreparable harm to the child’.78 The Committee does not provide an exhaustive definition of irreparable harm but suggests that it includes, though is ‘by no means limited to’, those harms contemplated under articles 6 and 37 of the CRC.79 The Committee goes on to suggest that underage military recruitment and participation in armed conflict ‘entails a high risk of irreparable harm involving fundamental human rights, including the right to life’.80 Accordingly, the Committee takes the view that the obligations in article 38 of the CRC, along with articles 3 and 4 of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict81 ‘entail extraterritorial effects’ and ‘States shall refrain from returning a child in any manner whatsoever to the borders of a State where there is a real risk of underage recruitment’.82 These child-specific non-refoulement obligations cast a wider and more tailored net than the general non-refoulement provisions under the International Covenant on Civil and Political Rights (‘ICCPR’)83 and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or (p. 834) Punishment (‘CAT’).84 In the same way that the Refugee Convention definition needs to be interpreted to take account of the specific needs and vulnerabilities of children, so too must a state’s non-refoulement obligations be construed in a manner that takes account of the fact that a child will be at risk of irreparable harm in a wider range of circumstances than a comparably placed adult.
Article 3 of the CRC, which specifies that the best interests of the child shall be a primary consideration in all actions concerning children, provides a critical additional safeguard for children seeking international protection. In particular, an assessment of the best interests of the child may preclude the removal of a child to her home country notwithstanding the fact that the child is not eligible for protection under the Refugee Convention or the more traditional non-refoulement obligations noted above. Article 3 thus creates a new category of protected persons whose claims will need to be assessed and evaluated by domestic decision makers.85 The relevant inquiry in these cases is whether the removal of the child is in the child’s best interests. If removal is contrary to the child’s best interests, there will be a strong presumption against removing the child, subject only to a tightly circumscribed range of considerations that may, in certain circumstances, override the child’s best interests.86 The argument that article 3 provides an independent basis for international protection has both academic87 and institutional88 support and the provision is playing an increasingly central role in domestic jurisprudence concerning the removal of children and/or their parents.89
(p. 835) A child will be liable to removal from a host state where she is ineligible for refugee status and/or a complementary or independent form of international protection. However, the child remains entitled to the protections afforded under the CRC while she remains in the host state, and those rights must be protected throughout the process of return.90
3. Unaccompanied and Accompanied Children
Article 22(1) affirms the well-established principle that all children—irrespective of whether they are accompanied or unaccompanied—are entitled to bring a claim for protection as a refugee or via another complementary or independent protection mechanism under the broader international human rights law framework. As the CRC Committee has underlined, ‘[a]sylum-seeking children, including those who are accompanied or separated, shall enjoy access to asylum procedures and other complementary mechanisms providing international protection, irrespective of their age’.91
A child’s claim for refugee status is most likely to be overlooked where the child is accompanied. In this scenario, the child’s claim will generally be subsumed into the claim of one of her parents, with the child’s status flowing directly from the status granted to her parent/s.92 In these circumstances it is unsurprising that UNHCR has identified invisibility as one of the key challenges that children face in establishing entitlement to refugee status, observing that children may be ‘perceived as part of a family unit rather than as individuals with their own rights and interests’.93 The apparent disinclination to individually assess an accompanied child’s refugee claim may translate into a positive protection outcome: in a number of jurisdictions there is a long-established practice of automatically conferring derivative protection on any dependent children if a parent or guardian is found to be a refugee. But the converse is also true: if the parent or guardian is denied refugee status, the child will similarly be denied protection. This may occur despite the fact that the child has a stronger independent claim for refugee status, for example because she faces a risk of being persecuted that would not be faced by her parents. A child may, for instance, be at risk of a child-specific form of persecutory harm, such as female genital cutting, deprivation of an education, parental abuse, involuntary gang or military recruitment, or discrimination on account of being born in circumstances considered illegitimate.
The removal of a child without an individualized assessment of the child’s eligibility for international protection will plainly offend article 22(1)’s insistence that refugee children and children seeking refugee status be afforded appropriate protection and humanitarian assistance. A lack of individual examination will also almost certainly infringe the (p. 836) requirement in article 12 of the CRC that a child be afforded an opportunity to be heard in any judicial or administrative proceeding affecting her and may give rise to a risk of a violation of the non-refoulement guarantee in article 33(2) of the Refugee Convention or the broader non-refoulement guarantee under international human rights law.94
B. States Parties Shall Take Appropriate Measures to Ensure
The requirement that ‘States Parties shall take appropriate measures to ensure’ that the beneficiaries of article 22(1) receive appropriate protection and humanitarian assistance focuses attention on the legislative, administrative, and other measures required to effectively implement article 22(1). The use of the term ‘shall’ reflects the mandatory nature of the obligation, while the words ‘to ensure’ make clear that the measures must be capable of effectively guaranteeing that refugee children and children seeking refugee status are afforded the rights conferred under article 22(1). The phrase ‘appropriate measures’ indicates that a broad range of measures must be implemented, and that the measures must be appropriately tailored to the specific vulnerabilities and developmental needs of refugee children, including unaccompanied and separated children.95 Consistent with article 4 of the CRC, the measures must cover the full spectrum of government activities, including not only administrative measures, but also legislative and training measures.96 The CRC Committee has placed particular emphasis on the importance of states adopting a comprehensive legislative framework to guarantee refugee children and children seeking refugee status the rights guaranteed under article 22 and the CRC more generally.97 In light of the absolute nature of the obligations derived from the CRC, these measures must be implemented notwithstanding the availability of resources. In circumstances where a state has resource constraints, such as in the case of a mass influx of displaced persons, the state must accept and facilitate assistance offered by international agencies, including UNICEF and UNHCR.98
It is not possible to comprehensively define those measures that will be appropriate for each or every state party to ensure the effective implementation of article 22(1) of the CRC. However, it is possible, from an examination of the Concluding Observations of the CRC Committee, to distil some of the key measures required of States Parties. These include the enactment of legislation to ensure that refugee children and children seeking refugee status are afforded the rights conferred under the CRC;99 the implementation of specific measures to address the specific needs and vulnerabilities of unaccompanied and (p. 837) separated children;100 the implementation of specific measures to allow for early identification of children who require additional protection and/or humanitarian assistance;101 the implementation of a legal framework to regulate the refugee determination procedure, and to ensure that every child within the jurisdiction has access to a refugee determination process and protection against refoulement;102 the implementation of a legal framework to ensure that the best interests of a child are treated as a primary consideration in all immigration and asylum process;103 the provision of training to decision makers on the best interests of the child principle and the rights protected under the Convention;104 the implementation of measures to ensure the provision, for separated and unaccompanied children, of a guardian and/or legal representation;105 the implementation of policies and/or procedures designed to ensure that children’s claims are progressed expeditiously and are dealt with in a child-friendly way;106 the implementation of policies and/or procedures to ensure the dissemination of information on the rights of a child to refugee children and/or children seeking refugee status;107 and the implementation of effective data collection in relation to children and children seeking refugee status.108
C. Appropriate Protection and Humanitarian Assistance
The obligation to ensure ‘appropriate protection and humanitarian assistance’ is concerned with the nature of the protection and assistance that a state must afford to beneficiaries of article 22(1) of the Convention. The repetition of the phrase ‘appropriate’ makes clear that the protection and humanitarian assistance provided must be tailored to the circumstances of the individual child. The inclusion of both ‘protection’ and ‘humanitarian assistance’ signifies that states are required not simply to refrain from acts which may impede a child’s ability to enjoy the rights under the CRC and other international (p. 838) human rights instruments, but also to undertake positive steps to secure the enjoyment of those rights. Importantly, article 22(1) goes beyond simply guaranteeing beneficiaries of article 22(1) enjoyment of the ‘applicable rights’ on a non-discriminatory basis, but imposes a further requirement on states to take into account any additional protection and humanitarian assistance that a refugee child or a child seeking refugee status may, on account of their distinct vulnerabilities and developmental needs, require in order to effectively enjoy those rights. This rights-plus framework gives concrete expression to the long-standing recognition that refugee children are entitled to special protection.109 As to what the special protection entails, this will vary depending on the circumstances of the individual child and the right/s in issue: the level of protection and assistance afforded will need to take into account the child’s age, level of maturity, and any particular vulnerabilities or needs that the child may have. As Goodwin-Gill has observed ‘[i]n refugee discourse “protection” is a term of art, whose meanings are not always clear … Protection thus defines itself … in the light of circumstances: environment, time and place and specific needs.’110 The protection and assistance required by article 22(1) will for instance invariably differ depending on whether the child is accompanied or unaccompanied.
D. Enjoyment of Applicable Rights Set Forth in the CRC
The obligation on states to provide appropriate protection and humanitarian assistance is directed to the enjoyment of ‘applicable rights’ under the CRC and other international human rights or humanitarian instruments.111 As to the CRC, the word ‘applicable’ cannot be read as limiting in any way the CRC rights to be afforded to refugee children or children seeking refugee status. Such an interpretation would be incompatible with both the text of the CRC, which mandates that states shall respect all of the rights set forth in the CRC to each child within their jurisdiction without discrimination of any kind,112 and with the clear intention of the drafters to ensure that refugee children are not treated differently from nationals in the host country.113 In light of that context, the word ‘applicable’ must be given a restrictive interpretation, concerned with identifying the ‘applicable’ rights under ‘other international human rights or humanitarian instruments to which the said States are Parties’.114 This interpretation is consistent with the drafting history, which reveals that the word ‘applicable’ was introduced into the text at the same time as the reference to ‘other international human rights or humanitarian instruments’.115
It is not possible to deal comprehensively with all of the CRC rights engaged by article 22(1). The discussion that follows identifies those rights that are particularly pertinent to (p. 839) the circumstances of refugee children and children seeking refugee status, and focuses, in particular, on the additional protection and humanitarian assistance that may be required to ensure that these children can effectively enjoy those rights.
Prior to addressing the individual CRC rights, it is important to emphasize that the ultimate objective in addressing the situation of refugee children and children seeking refugee status, whether accompanied or unaccompanied, is to provide the child with a durable solution. The search for a durable solution should commence immediately. Childhood is a wasting asset; you do not get a second chance. There is, accordingly, no single point in time when a displaced child ‘suddenly becomes ready for a durable solution’;116 to the contrary, ‘as the child will not postpone his or her growth or development … the need to implement elements of a durable solution is immediate’.117 It follows that the identification of a durable solution must not be limited to a consideration of the three traditional durable solutions: voluntary reparation, local integration, or resettlement in a third country. A durable solution for a child must not be exclusively event-oriented (with said events—reparation, integration, resettlement—often postponed by host states), but should contribute immediately to the future development of the child.118 The content of a durable solution should draw on the full range of rights protected under the CRC.119 In identifying a durable solution a decision maker must give due weight to the views of the child,120 and must ensure that the best interests of the child are a primary consideration.121 Any durable solution must take into account a child’s short-term and long-term welfare and developmental needs, including those effects that may be felt after a child has reached his or her eighteenth birthday.122 This is consistent with the object and purpose of the CRC, which, at its core, is concerned with developing a child to his or her fullest potential, and preparing a child for a responsible life in a free society.123
The best interests principle, which mandates that the best interests of the child shall be a primary consideration in all actions concerning children,124 is critical ‘during all stages of the displacement cycle’.125 The CRC Committee has in its recent General Comment (p. 840) No 14 underlined that article 3(1) operates as a substantive right, an interpretative device, and a rule of procedure.126 As regards the former, the Committee observed that the article 3(1) obligation incorporates ‘[t]he right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered … and the guarantee that this right will be implemented whenever a decision is to be made concerning a child’.127 The best interests principle will thus inform both the ‘appropriate measures’ required of a state, as well as the content of the ‘appropriate protection and humanitarian assistance’ to which a refugee child or child seeking refugee status is entitled. In the context of unaccompanied or separated children, a key procedural requirement is the appointment of a guardian and, where required, a legal representative, to ensure that the best interests of the child are taking into account and safeguarded.128
There are three factors that must be taken into account in making an assessment as to what is in the best interests of a child.129 The first factor is the views of the child.130 Although a child’s views may not be determinative, they represent a critical ingredient in undertaking the best interests assessment.131 This has been affirmed by the Committee, which considers that ‘there can be no correct application of article 3 if the components of article 12 are not respected’.132 The recast EU Qualification Directive also expressly notes ‘[i]n assessing the best interests of the child, Member States should in particular take due account of … the views of the minor in accordance with his or her age and maturity’.133 The second factor that must be taken into account is the specific situation and circumstances of the child, including the child’s age, level of maturity, and any particular vulnerabilities or needs that that child may have.134 For example, has the child been the subject of physical or psychological abuse? Does the child suffer from a disability or other medical condition? What, if any, language does the child speak? Is the child unaccompanied (p. 841) or accompanied by a family member? The best interests of a child in a specific situation of vulnerability will not be the same as a child who is not in the same vulnerable situation. As the Committee has apprised, decision makers must thus ‘take into account the different kinds and degrees of vulnerability of each child’ in order to accommodate the reality that ‘each child is unique and each situation must be assessed according to the child’s uniqueness’.135 The third factor is the extensive catalogue of rights protected under the CRC. The rules of treaty interpretation require that article 3 must be read within the context of the CRC as a whole, including the substantive rights protected under it. This integrated construction injects substantive content into article 3 and thus provides a critical bulwark against the risk of subjective arbitrariness. As Tobin argues, ‘a proposed outcome for a child cannot be said to be in his or her best interests where it conflicts with the provisions of the [CRC]’.136 So, for instance, in deciding whether article 3 precludes the removal of a child from a host state, a decision maker is required to consider the extent to which a child seeking international protection will, on return, enjoy each of the rights protected under the CRC, having regard to both the personal circumstances of the child and the conditions prevailing in the home country. That assessment should be based on empirical evidence that relates to both the specific child and the human rights conditions in the destination country. A broad range of CRC rights will be relevant to that assessment.137
In determining the ‘appropriate measures’ to be adopted for beneficiaries of article 22, and the content of any ‘appropriate protection and humanitarian assistance’, states must comply with article 12 of the CRC, which requires states to both elicit and take into account a child’s views.138 As the CRC Committee has explained:
[c]hildren who come to a country following their parents in search of work or as refugees are in a particularly vulnerable situation [and] [f]or this reason it is urgent to fully implement their right to express their views on all aspects of the immigration and asylum proceedings.139
In order to allow for a well-informed expression of views, children must be provided, in a manner that is appropriate to their age and level of maturity, with all relevant information, particularly as regards entitlements under the CRC.140 As noted above, article 12 has a particularly central role to play in the context of the refugee status determination process, mandating that children have a right to be heard in ‘any judicial and administrative (p. 842) proceedings affecting the child’.141 In the refugee context, the language is wide enough to cover both the original administrative decision as well as any subsequent judicial review. The participatory right codified in article 12 thus provides a principled basis for enhancing the visibility of children in the refugee status determination process, particularly for accompanied children who are very often subsumed into a parent’s claim without any independent assessment of the child’s particular circumstances. Article 12 will also be relevant in any determination as to the best interests of a child,142 and in any consideration of durable solutions.143
Article 6 of the CRC protects a child’s inherent right to life and places an obligation on states to ensure to the maximum extent possible the survival and development of the child.144 Article 6 recognizes that the right to life extends beyond a negative duty to respect and to protect life and encompasses a positive obligation to ensure the survival and development of the child. The language of article 6(2):
leave[s] no doubt that the right to life, survival and development obliges States Parties to adopt a holistic approach to the child’s development and to take comprehensive positive measures to fulfill, to the maximum extent possible, the survival and health development of the child.145
A refugee child or child seeking refugee status will be susceptible to various risks that impact on their right to life, survival, and development, and states are required to take appropriate measures to protect children against these risks.146
Article 9 of the Convention has far-reaching although still largely unexplored implications for refugee children and children seeking refugee status. Article 9 provides that, where a child and parent are together within a state’s jurisdiction, the child shall not be separated from his or her parents against their will except where such separation is ‘necessary for the best interests of the child’.147 The ‘best interests of the child’ is not a primary or paramount consideration but rather the exclusive basis on which a state can justify the involuntary separation of child and parent.148 This represents a significant departure from the approach taken in earlier human rights accords, which allow interference with the family unit in a wider, although still tightly circumscribed, range of circumstances. For instance, article 17(1) of the ICCPR is limited to the prohibition of ‘arbitrary or unlawful interference with … [the] family’.149 In this context, the United Nations Human Rights Committee has confirmed that ‘the separation of a person from his family … could be (p. 843) regarded as an arbitrary interference’ but only if the ‘separation … and its effects … were disproportionate to the objectives of the removal’.150 A child’s interest in remaining with his or her parent/s thus finds itself squared off against a state’s interest in enforcing its immigration regime. In contrast, the language of article 9(1) makes plain that no countervailing interests, including the enforcement of immigration control measures, can be invoked to justify the separation of a parent and child.151 Hence, if separation is not in the best interests of the child, a state is under a duty to take positive measures to ensure that the child and his or her parent/s can remain together, irrespective of the fact that only one member of the family may be eligible for refugee protection.
It has been suggested that article 9(4) in some way qualifies the article 9(1) obligation. In ZH (Tanzania) v SSHD, the UK Supreme Court suggested that article 9 draws a distinction between ‘the compulsory separation of a child from her parents, which must be necessary in her best interests’ and ‘the separation of a parent from his child, for example, by detention, imprisonment, exile, deportation or even death’.152 The Supreme Court took the view that in the latter scenario the best interests of the child must be a primary, but not the determinative, consideration.153 This distinction is at odds with the express language of the provision, which makes it clear that article 9(4) entails a cumulative obligation, rather than a qualification to article 9(1). The critical language is the opening phrase ‘[w]here such separation’,154 which indicates that separation in the context of article 9(4) is to be understood as subject to the general principle set out in article 9(1). The sole purpose of article 9(4) is to ensure that ‘adequate information … concerning the whereabouts of the absent parent or child’ was provided where the separation has been occasioned by state-initiated actions.155 The additional right was never intended to derogate from the general duty of non-separation codified under article 9(1), and it was certainly not intended to suggest that state-initiated actions were prima facie legitimate.156 Indeed, such an interpretation would lead to the absurd result that article 9(1) would (p. 844) not apply to any separation initiated by a State Party,157 thereby rendering the provision largely nugatory.
Article 10 of the CRC provides that an application by a child or his or her parent to enter or to leave a state for the purpose of family reunification shall be dealt with in a positive, humane, and expeditious manner. This provision is strengthened by article 22(2), which imposes an obligation on states to facilitate family reunification. The content of article 10 is considered within that context below.158
Article 7 of the CRC provides that each child has a right to be registered immediately after birth, the right to a name, and the right to acquire a nationality.159 The realization of these rights can be particularly difficult for children who are fleeing their country of nationality or are born in the host country where their parents are seeking asylum. Birth registration is often closely linked to the provision of other rights, including access to education and health services.160 It is unsurprising then that both the CRC Committee and UNHCR have called upon states to ensure the birth registration of refugee children and children seeking refugee status.161 All refugee children in a host country must also be able to acquire, including through naturalization, an effective nationality, particularly where the child would otherwise be stateless.162
A child’s right to education must be respected during all stages of displacement.163 This right is particularly critical for refugees, given the level of disruption that involuntary migration will almost invariably have on a child’s education.164 Article 28 of the CRC mandates that primary education must be ‘compulsory and available free to all’165 and that states must:
[e]ncourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need.166
(p. 845) The CRC Committee has repeatedly called on states to ensure that refugee children and children seeking refugee status have full access to education.167 UNHCR has similarly:
[r]eaffirmed the fundamental right of refugee children to education and called upon all States, individually and collectively, to intensify their efforts … to ensure that all refugee children benefit from primary education of a satisfactory quality, that respects their cultural identity and is oriented towards an understanding of the country of asylum.168
Additional measures will often be required to secure access to education, including, in particular:
[the allocation of] the necessary financial, technical and human resources to provide special language programmes for refugee or asylum-seeking children to prepare them for full-entry into the general educational system of the country [and the provision of] supplementary assistance to refugee children according to individual education plans, in order to prevent early dropout and meet specific educational needs.169
Article 29 of the CRC adds a qualitative dimension to article 28, establishing the right to a ‘specific quality of education’.170 The CRC Committee has observed that ‘the curriculum must be of direct relevance to the child’s social, cultural, environmental and economic context and to his or her present and future needs and take full account of the child’s evolving capacities’.171 Of particular relevance, article 29(1)(c) provides that the education of a child should be directed to ‘[t]he development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own’.172 Hence, refugee children and children seeking refugee status ‘have the right to maintain their cultural identity and values, including the maintenance and development of their native language’.173
Article 20 of the CRC is particularly relevant to unaccompanied and separated children who are, by definition, children that are temporarily or permanently deprived of their family environment, and hence beneficiaries of the enhanced protection afforded under this provision.174 As a first step, measures must be in place to ensure that unaccompanied and separated children can be readily identified, as they will often not simply present themselves to the relevant authorities.175 After a child has been identified, the state is required to create the underlying legal framework and to take the necessary measures to ensure proper representation of the child’s best interests and to secure alternative care arrangements that meet the developmental needs of the child.176 This will require the (p. 846) appointment of a guardian or adviser.177 The wide range of alternative care arrangements is explicitly acknowledged in article 20(3), which notes that such care could include ‘inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children.’178 When deciding on care arrangements the best interests of the child must be a primary consideration, and the decision maker must have due regard to ‘the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background’.179
The additional protection afforded under article 23 of the CRC180 is particularly important for refugee children, given that many disabilities are directly caused and/or exacerbated by the circumstances leading to the child’s flight from his or her home country.181 If a refugee child suffers from a disability, early identification and registration of the child is important so that a plan can be devised that responds to the particular needs of the child and ensures that the child receives protection and humanitarian assistance which is tailored to their individual circumstances.182
A child’s right to the highest attainable standard of healthcare and to access to facilities for the treatment of illness and rehabilitation must be respected during all stages of displacement.183 A child who has been forced to flee their home country will invariably be subject to living conditions which threaten the enjoyment of their right to health and adequate nutrition. UNHCR has thus called upon states ‘to develop and/or support programmes to address nutritional and health risks faced by refugee children, including programmes to ensure an adequate well-balanced and safe diet, general immunization and primary health care’.184 The CRC Committee has similarly called upon states to ensure that refugee children and children seeking refugee status have full access to healthcare.185
States Parties are required to ensure that refugee children and children seeking refugee status have access to the same healthcare services as nationals. In securing such access, a state must have regard to the particular circumstances and vulnerabilities of such children, including the fact they have been separated from family members and/or experienced loss, trauma, disruption and violence, including the mental and physical anguish associated with armed conflict.186 Consistent with the rights-plus framework secured by article 22 of the CRC, supplementary healthcare services may also be required for refugee populations given the enhanced health risks for this sub-set of children.187 This may include rehabilitation services where children have been victims of any form of neglect, exploitation or abuse, torture or any other form of cruel, inhuman, or degrading treatment or punishment, or armed conflicts.188 In circumstances where facilities and resources are (p. 847) limited—and particularly in cases of mass-influx—states must accept and facilitate assistance offered by UNHCR, UNICEF, the World Health Organization (‘WHO’), and other relevant agencies in order to meet the healthcare needs of refugee children and children seeking refugee status.189
The Convention contains a comprehensive suite of rights which seek to protect children against all forms of abuse and exploitation including physical, emotional, and sexual abuse, forced labour, trafficking, torture and other ill-treatment, and recruitment into armed conflict. The risk of exposure to these forms of abuse and exploitation are heightened for refugee children and children seeking refugee status,190 and states are required to take appropriate measures to ensure that these children receive appropriate protection against these risks.191
It has long been recognized that detention can have debilitating and lasting effects on a child’s development. As UNHCR and UNICEF have observed, detention ‘undermines the human dignity of individuals and can cause unnecessary suffering and has potentially serious consequences for health and well-being’.192 The detention of children is ‘particularly serious due to the devastating effect it may have on their physical, emotional and psychological development’.193 As a general rule, consistent with article 37 of the CRC and the best interests principle, a refugee child or child seeking refugee status should not be detained by a host state.194 A child’s immigration status (or lack therefor) does not provide a justification for detention.195 The Working Group on Arbitrary Detention has suggested that:
Given the availability of alternatives to detention, it is difficult to conceive of a situation in which the detention of an unaccompanied minor would comply with the requirements stipulated in article 37(b), clause 2, of the [CRC], according to which detention can be used only as a measure of last resort.196
(p. 848) Notwithstanding the clear terms of article 37, and the position adopted by the CRC Committee, UNHCR, and other agencies, the detention of children, either in closed refugee camps or immigration centres, continues and remains a serious concern.197
In exceptional cases of detention, additional safeguards are expressly provided for in article 37. Detention must be ‘in conformity with the law and … used only as a measure of last resort and for the shortest appropriate period of time’.198 Any child who is detained ‘shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age’, and must be separated from adults unless it is considered in the child’s best interest not be so separated.199 As the Committee has observed, ‘the underlying approach to such a programme should be “care” and not “detention” ’.200 All children in detention must also have ‘prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation’.201 Appropriate measures must also be in place to secure the enjoyment of all other rights guaranteed under the CRC, including the right to an education,202 and the right to recreation and play.203
E. Enjoyment of Applicable Rights Set Forth in Other International Human Rights or Humanitarian Instruments
The final phrase of article 22(1) serves as a reminder that the Convention must be read alongside the broader framework of international and regional human rights law to ensure that refugee children and children seeking refugee status are guaranteed maximum protection.204 This affirms the position codified in article 41 of the CRC, which stipulates that ‘[n]othing in the [CRC] shall affect any provisions which are more conducive to the realization of the rights of the child’.205 A number of instruments are particularly applicable to the situation of refugees and/or children, including the Refugee Convention206 and the regional refugee accords,207 the Convention on the Reduction (p. 849) of Statelessness,208 the Convention relating to the Status of Stateless Persons,209 the 1949 Geneva Conventions,210 and the African Charter on the Rights and Welfare of the Child.211 Although by no means an exhaustive list,212 other relevant instruments will include the International Bill of Rights (the Universal Declaration of Human Rights, the ICCPR, and the International Covenant on Economic, Social and Cultural Rights),213 the Convention on the Elimination of All Forms of Discrimination against Woman,214 the International Convention on the Elimination of All Forms of Racial Discrimination,215 and the Convention on the Rights of Persons with Disabilities216 and the cognate regional instruments, including the European Convention on Human Rights,217 the African Charter on Human and Peoples’ Rights,218 and the American Convention on Human Rights.219 Importantly, the obligation of states to ensure ‘appropriate protection and humanitarian assistance’ attaches both to the enjoyment of rights under the CRC and to the enjoyment of rights under ‘other international human rights or humanitarian instruments’. Hence, the analysis set out above concerning the rights-plus framework of article 22 applies equally to this final requirement.
In contrast to the general tenor of the first paragraph of article 22, paragraph 2 serves a number of specific functions. First, it introduces an obligation to cooperate with certain organizations to achieve the realization of the obligations imposed under article 22(1). This requirement is unique to article 22 and is a recognition of the significant (p. 850) contribution that the United Nations and organizations cooperating with it, in particular UNHCR, make in securing the rights of refugee children and children seeking refugee status. Secondly, it imposes a specific obligation to cooperate with certain organizations to trace the parents or other members of the family of any refugee child in order to obtain the information necessary for the child’s reunification with his or her family. Although implicit in the general cooperation obligation, its express inclusion reaffirms the importance attributed to family unity under the CRC.220 Thirdly, it provides a sign-post to article 20 of the CRC, affirming that where a refugee child’s family cannot be found, the child shall be afforded the same protection as any other child permanently or temporarily deprived of his or her family environment.
The obligation to cooperate with certain organizations to achieve the realization of the obligations imposed under article 22(1) applies to the same beneficiaries as the first paragraph of article 22, namely refugee children and children seeking refugee status. This is clear from the reference to ‘such a child’ in article 22(2), which indicates that the scope of article 22(1) carries through to this first aspect of article 22(2). By contrast, the requirement to cooperate in respect of tracing and family reunification expressly only applies to refugee children. This is a curious circumscription in circumstances where the requirement to cooperate in respect of tracing is implicit in the more general obligation to cooperate which applies to both refugee children and children seeking refugee status, and the related family reunification obligation under article 10(1) which applies to all children within a state’s territory irrespective of whether the child is a refugee. Although the final sentence of article 22(2) does not stipulate whether it applies to refugee children and/or children seeking refugee status, given its relationship with article 20, which applies to all children, the sentence should be interpreted as applying equally to refugee children and to children seeking refugee status.221
At an early stage of drafting amendments were introduced to acknowledge the important role played by international organizations in the protection of refugee children and children seeking refugee status. A working party comprised of the delegates from Denmark and India and the observer for UNHCR proposed that article 22 should include a provision in the following terms: ‘The States Parties undertake to co-operate with the Office of the United Nations High Commissioner for Refugees in the exercise of its function of ensuring protection and assistance to such a child’.222
There was subsequently debate as to whether it was appropriate to specifically refer to UNHCR.223 A number of delegates considered that the reference should be deleted,224 (p. 851) while other delegates took the view that it should be supplemented with a reference to the United Nations Children’s Fund and the International Committee of the Red Cross.225 There was extreme reluctance among several delegates to delete the reference to the organization given its unique and mandate and the significant work that it performed.226 A compromise solution saw the reference to UNHCR replaced by a reference to the United Nations and other competent and inter-government and non-government organizations cooperating with the United Nations.227 The reference to organizations cooperating with the United Nations was a further compromise, in response to a concern that there were certain non-governmental organizations, such as terrorist organizations, which ought not to be captured by the provision.228
The duty of cooperation in article 22(2) is targeted at efforts made by organizations to protect and assist refugee children and children seeking refugee status. The phrase ‘protect and assist’ mirrors the language of ‘protection and humanitarian assistance’ in article 22(1), signifying that at its core the duty to cooperate is focused on the realization of the obligations imposed under article 22(1). Although the duty to cooperate is mandatory (‘shall provide’), the level of cooperation is left to the discretion of states. The words ‘they consider’ was introduced between the words ‘as’ and ‘appropriate’ in order to address concerns that were raised by some delegations that the obligation to cooperate should be dependent on the consent of the relevant State Party. Although such a compromise was perhaps inevitable given the strong feelings expressed by certain delegations, the injection of a discretionary element into article 22(2) is unfortunate in that it makes a state the ultimate arbiter of its own behaviour.229 This stands in contrast to paragraph 1 of article 22 where the question of whether a state has secured appropriate protection and humanitarian assistance to refugee children and children seeking refugee status against is to be assessed against an objective standard. It may be that the cooperation duty in article 22(2) could be strengthened by the requirement that the obligations contained in article 22(2) must be performed in good faith.230 A blanket refusal to cooperate with an organization, in circumstances where such cooperation is necessary to ensure that refugee children and children seeking refugee status secure the rights to which they are entitled, and without any cogent explanation as to why such cooperation would not be appropriate, may breach the good faith requirement.
Article 22(2) identifies family reunification as one of the areas in which States Parties shall provide cooperation in any efforts made by the United Nations and other organizations. The obligation under article 22(2) requires positive action to facilitate the reunification of refugee families, and thus complements articles 9 and 10 of the CRC.231 The scope of the obligation was gradually watered down during the drafting process, having started off as a duty on States Parties to ‘undertake to, as soon as possible, investigate whether the child has a family or other close relations, and recognize the right of the refugee child to be reunited with his guardians or relatives’,232 and finishing up as a duty to provide cooperation in any efforts made by the United Nations and other organizations in the tracing and reunification of refugee families.233 Accordingly, although helpful in signposting the significance attributed to family unity under the CRC,234 the obligation goes no further than the general cooperation duty.
The obligation to provide cooperation in the tracing and reunification of refugee families applies to all refugee children, and not just to unaccompanied or separated children.235 The obligation applies to the tracing of ‘parents or other members of the family’ of any refugee children.236 Although the provision is silent on whether this also captures a legal guardian, the better view is that it does.237 As to the measures required to fulfil the obligations in article 22(2), the provision should be read alongside the obligations contained in article 9 and, in particular, article 10(1) of the CRC which requires States Parties to ensure that applications for reunification are dealt with in a ‘positive, humane and expeditious manner’. As to the tracing duty, the CRC Committee has stated that:
Tracing is an essential component of any search for a durable solution and should be prioritized except where the act of tracing, or the way in which tracing is conducted, would be contrary to the best interests of the child or jeopardize fundamental rights of those being traced.238
As to the reunification duty, the CRC Committee has urged States Parties ‘[to] adopt a flexible and expansive approach to ensure implementation of the right to family reunification for all children and family members without distinctions based on their legal status’.239
(p. 853) In the majority of cases involving unaccompanied and separated children, if the child’s family can be located the best interests of the child will generally be served by reunited the child with his or her family.240 This is consistent with the protection against arbitrary interference with the family (art 16), the obligation to respect the responsibilities, rights, and duties of parents (art 5), and the duty of non-separation (art 9). Yet the principle of family unity is not absolute, and it is critical that family reunification is not invoked as an automatic trump card to justify a child’s removal where that removal will be contrary to the child’s best interests.241 The Committee has made clear that the list is not comprehensive and that other considerations may dictate that family reunion is not in the best interests of the child:
Family reunification in the country of origin is not in the best interests of the child and should therefore not be pursued where there is a ‘reasonable risk’ that such a return would lead to the violation of fundamental human rights of the child … Where the circumstances in the country of origin contain lower level risks and there is concern, for example, of the child being affected by the indiscriminate effects of generalized violence, such risks must be given full attention and balanced against other rights-based considerations, including the consequences of further separation. In this context, it must be recalled that the survival of the child is of paramount importance and a precondition for the enjoyment of any other rights.242
In assessing whether family unification is appropriate, the decision maker must take into account the views of the child and, consistent with article 5 of the CRC, the views of the child’s parent or other interested party.
In addition to providing for a duty to provide cooperation, article 22(2) affirms that in circumstances where it is not possible to locate the family members of a refugee child or child seeking refugee status, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment. As noted above, this final requirement effectively provides a signpost to article 20 of the CRC, underlining the importance of refugee children and children seeking refugee status securing the rights afforded under that provision on a non-discriminatory basis.243
Article 22 has a unique and vital role to play in advancing the rights of refugee children and children seeking refugee status, providing advocates and decision makers with a lever to secure an appropriate level of protection and assistance for this particularly vulnerable sub-set of children.244 Far from simply guaranteeing beneficiaries of article 22 enjoyment of applicable rights on a non-discriminatory basis—which is any event mandated by the balance of the Convention—article 22 provides a rights-plus framework that requires states to take appropriate measures to ensure that a refugee child or child seeking refugee status receive the appropriate level of protection and humanitarian assistance. This framework requires states to take into account any additional protection and humanitarian assistance that a refugee child or child seeking refugee status may require in order to effectively enjoy the rights guaranteed under the CRC and other relevant international human rights instruments. In introducing this rights-plus framework article 22 transposes the international community’s long-standing recognition that refugee children are entitled to special protection and provides a treaty-based mechanism to secure that protection.
- Bhabha J, Child Migration and Human Rights in a Global Age (Princeton University Press 2014)
- Bhabha J and Crock M, Seeking Asylum Alone: A Comparative Study (Themis Press 2007)
- Crock M, ‘Re-Thinking the Paradigms of Protection: Children as Convention Refugees in Australia’ in J McAdam (ed), Forced Migration, Human Rights and Security (Hart Publishing 2008) 155
- Goodwin-Gill G S, ‘Unaccompanied Refugee Minors: The Role and Place of International Law in the Pursuit of Durable Solutions’ (1995) 3 International Journal of Children’s Rights 405
- Goodwin-Gill G S, ‘Expert Roundtable Discussion on “The United Nations Convention on the Rights of the Child and Its Application to Child Refugee Status Determination and Asylum Processes”—Introduction’ (2012) 26(3) Journal of Immigration, Asylum and Nationality Law 226
- Hathaway J C and Foster M, The Law of Refugee Status (2nd edn, CUP 2014)
- Hathaway JC, The Rights of Refugees under International Law (CUP 2005)
- Löhr T, Die kinderspezifische Auslegung des völkerrechtlichen Flüchtlingsbegriffs (Nomos 2009)
- McAdam J, Complementary Protection in International Law (OUP 2007)
- Pobjoy J, ‘The Best Interests of the Child Principle as an Independent Source of International Protection’ (2015) 64(2) International Comparative Law Quarterly 327
- Pobjoy J, The Child in International Refugee Law (CUP 2017)
- Smyth C, European Asylum Law and the Rights of the Child (Routledge 2014)
- CRC Committee, ‘General Comment No 6: Treatment of Unaccompanied and Separated Children Outside Their Country of Origin’ (2005) UN Doc CRC/GC/2005/6
- UNHCR, ‘Handbook on Procedures and Criteria for Determining Refugee Status’ (2nd edn 1992, reissued 2011) UN Doc HCR/1P/4/ENG/REV.3
- UNHCR, Refugee Children: Guidelines on Protection and Care (UNHCR 1994)
- UNHCR, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (1997)
- UNHCR ExCom, ‘Conclusion on Children at Risk’ No 107 (LVIII) (2007) (reproduced in UNHCR, Conclusions Adopted by the Executive Committee on the International Protection of Refugees (2009) 190
- UNHCR, ‘Guidelines on International Protection: Child Asylum Claims under Article 1A(2) and 1F of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees’ (2009) UN Doc HCR/GIP/09/08
jason m pobjoy*
2 According to UNHCR data, in 2016 children below 18 years constituted 51 per cent of the refugee population. In 2014, some 75,000 asylum applications were lodged by unaccompanied or separated children in 70 countries: UNHCR, Global Trends 2016 (2017) 2–3.
4 The initial draft of the 1924 Declaration was drafted and submitted to the League of Nations in 1922 by Eglantyne Jebb, an English schoolteacher and co-founder of the Save the Children International Union. Jebb was of the view that ‘all wars are waged against children’: G Van Bueren, The International Law on the Rights of the Child (Kluwer Law International 1998) 8. See further E Jebb, International Responsibilities for Child Welfare (Save the Children International Union 1927). See also the mandate of the International Refugee Organization (‘IRO’), the first international agency created by the UN, to coordinate the international action then required to respond to the mass displacement and dislocation of populations following the Second World War. The Constitution of the IRO contained express provisions for ‘unaccompanied children’: Constitution of the International Refugee Organization (adopted 15 December 1946, entered into force 20 August 1948) 18 UNTS 3, Annex 1, Part IA, para 4.
5 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85; Geneva Convention Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 (‘Fourth Geneva Convention’) (together the ‘1949 Geneva Conventions’).
6 Fourth Geneva Convention (n 5) art 24. The 1977 Additional Protocols go even further: see Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3; Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609. In total, 25 articles in the 1949 Geneva Conventions and the 1977 Additional Protocols deal specifically with children: GS Goodwin-Gill, ‘Unaccompanied Refugee Minors: The Role and Place of International Law in the Pursuit of Durable Solutions’ (1995) 3 International Journal of Children’s Rights 405, 413. See further D Plattner, ‘Protection of Children in International Humanitarian Law’ (1984) 24(240) International Review of the Red Cross 140.
7 ‘[The General Assembly] notes with concern the large number of … refugee or asylum seeking children … [and] internally displaced children … and stresses the need to incorporate special measures, in accordance with the principle of the best interests of the child … and calls upon states to provide special support and to ensure equal access to services for those children’: Rights of the Child, A/RES/69/157 (2014) para 8; ‘[The General Assembly] calls upon all States to protect refugee, asylum-seeking and internally displaced children, in particular those who are unaccompanied, who are particularly exposed to violence and risks in connection with armed conflict and trafficking, and taking into account their gender-specific needs, stressing the need for States as well as the international community to continue to pay more systematic and in-depth attention to the special assistance, protection and development needs of those children’: Rights of the Child, A/RES/68/147 (2014) para 42; ‘[The General Assembly] calls upon all States to protect refugee, asylum-seeking and internally displaced children, in particular those who are unaccompanied and who are particularly exposed to risks in connection with armed conflict and post-conflict situations, such as recruitment, sexual violence and exploitation’: Rights of the Child (2012) A/HRC/19/L.31 para 22; ‘[The General Assembly] [a]ffirms the importance of age, gender and diversity mainstreaming in analysing protection needs and … recognizing the importance of addressing the protection needs of women and children in particular’: Office of the United Nations High Commissioner for Refugees, A/RES/65/194 (2011) para 21; ‘[The General Assembly] [a]ffirms that children, because of their age, social status and physical and mental development, are often more vulnerable than adults in situations of forced displacement, recognizes that forced displacement, return to post-conflict situations, integration in new societies, protracted situations of displacement and statelessness can increase child protection risks, taking into account the particular vulnerability of refugee children to forcible exposure to the risks of physical and psychological injury, exploitation and death in connection with armed conflict, and acknowledges that wider environmental factors and individual risk factors, particularly when combined, may generate different protection needs’: Assistance to Refugees, Returnees and Displaced Persons in Africa, A/RES/69/154 (2014) para 9. The need to prioritize the protection of refugee children was affirmed in similar resolutions under the title Assistance to Refugees, Returnees and Displaced Persons in Africa in 2013 (A/RES/68/143), 2012 (A/RES/67/150), 2011 (A/RES/65/193), 2010 (A/RES/64/129), 2009 (A/RES/63/149), 2008 (A/RES/62/125), 2007 (A/RES/61/139), 2006 (A/RES/60/128), 2005 (A/RES/59/172), 2004 (A/RES/58/149), 2003 (A/RES/57/183), 2002 (A/RES/56/135), 2001 (A/RES/55/77), 2000 (A/RES/54/147), 1999 (A/RES/53/126), 1998 (A/RES/52/101), 1997 (A/RES/51/71), 1996 (A/RES/50/149), 1995 (A/RES/49/174), 1994 (A/RES/48/118) and 1993 (A/RES/47/107). The UN General Assembly has also adopted several resolutions addressing the particular needs of unaccompanied refugee children under the title Assistance to Unaccompanied Refugee Minors: A/RES/58/150 (2004); A/RES/56/136 (2002); A/RES/54/145 (2000); A/RES/53/122 (1999); A/RES/52/105 (1998); A/RES/51/73 (1997); A/RES/50/150 (1996); A/RES/49/172 (1995).
8 In 1986, shortly prior to the adoption of the CRC, the Executive Committee of UNHCR (‘ExCom’) noted that ‘the situation of refugee children … required special consideration’ and called on the High Commissioner to report regularly to ExCom on the ‘needs of refugee children, and on existing and proposed programmes for their benefit’: UNHCR ExCom, ‘General’, No 41 (XXXVII) (13 October 1986) (reproduced in UNHCR, Conclusions Adopted by the Executive Committee on the International Protection of Refugees (2009) 53), para (m). Following that session UNHCR established a Working Group on Refugee Children at Risk (‘UNHCR Working Group’) and in 1987 published its first ‘Note on Refugee Children’: (1987) EC/SCP/46. The opening paragraph of that Note states: ‘Refugee children comprise approximately one-half of the world’s refugee population, and as such benefit from general efforts on behalf of all refugees with respect to international protection, material assistance and durable solutions. Children, however, have special needs which must be identified and met’. The same year the ExCom published its first Conclusion specific to refugee children, which noted the ‘special needs and vulnerability’ of children within the broader refugee population and recognized that the situation in which children live ‘often gives rise to special protection and assistance problems as well as to problems in the area of durable solutions’: UNHCR ExCom, ‘Refugee Children’, No 47 (XXXVIII) (1987) (reproduced in UNHCR, Conclusions on the International Protection of Refugees (2009) 61) (‘Conclusion No 47 on Refugee Children’), paras (a) and (b) respectively. The UNHCR Working Group convened a consultation on refugee children in March 1988, and in August 1988 issued the first edition of its ‘Guidelines on Refugee Children’. The guidelines identified the major issues affecting refugee children, and provided guidance on how UNHCR will ensure that the special protection needs of refugee children are met. In 1989 the ExCom issued a second Conclusion on refugee children, reaffirming and expanding on the need for particular attention to be paid to the special protection needs of refugee children: UNHCR ExCom, ‘Refugee Children’, No 59 (XL) (1989) (reproduced in UNHCR, Conclusions Adopted by the Executive Committee on the International Protection of Refugees (2009) 79).
9 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 and the attendant Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267. Hereafter referred to individually as the ‘1951 Convention’ and the ‘1967 Protocol’, and collectively as the ‘Refugee Convention’.
11 CRC art 2(1) of the makes clear that the CRC applies to ‘each child within [a State Party’s] jurisdiction’ and prohibits any discrimination ‘irrespective of the child’s or his or her parent’s or legal guardian’s … birth or other status’. See further UNICEF, Implementation Handbook for the Convention on the Rights of the Child (3rd edn, United Nations Children’s Fund 2007) 23; UN Committee on the Rights of the Child (‘CRC Committee’), ‘General Comment No 6: Treatment of Unaccompanied and Separated Children Outside Their Country of Origin’ (2005) CRC/GC/2005/6 (‘CRC GC 6’) para 18. A number of states sought, unsuccessfully, to limit the jurisdictional scope of the CRC to apply only to children ‘lawfully’ within a state’s territory. The representative of the United States proposed that what is now art 2 of the CRC should read: ‘Each State Party to the present Covenant shall respect and extend all the rights set forth in this Convention to all children lawfully in its territory’ (emphasis added). The representative later amended the proposal to read: ‘The State Parties to the present Covenant shall respect and extend all the rights set forth in this Convention to all children (lawfully) in their territories without distinction of any kind’: ‘Report of the Working Group on a draft convention on the rights of the child’ (1981) E/CN.4/L.1575, paras 40, 44. Other delegates were evidently uncomfortable with the idea of limiting the application of the CRC to children lawfully in the territory of a state party: at para 40. Indeed, an earlier draft submitted by the Polish representative contained a express provision (then art 5) emphasizing that ‘[t]he State parties … recognize the right of alien children staying in their territories to enjoy the rights provided for in this Convention’: ‘Note Verbale Dated 5 October 1979 Addressed to the Division of Human Rights by the Permanent Representation of the Polish People’s Republic to the United Nations in Geneva’ (1979) E/CN.4/1349. The United States representative ultimately agreed to withdraw the word ‘lawfully’ from its proposed text, but only on the understanding that the proposed art 5 would be deleted: ‘Report of the Working Group on a Draft Convention on the Rights of the Child’ (n 11) para 47. Throughout the drafting the UK and German representatives repeatedly noted their concerns about the extension of the CRC to non-nationals: United Nations Economic and Social Council, ‘Report of the Working Group on a draft convention on the rights of the child’ (1984) E/CN.4/1984/71 paras 9, 11.
12 UNHCR ExCom, ‘Conclusions on Provision of International Protection Including through Complementary Forms of Protection’ (2005) No 103 (LVI) (reproduced in UNHCR, Conclusions Adopted by the Executive Committee on the International Protection of Refugees (2009) 177) preamble para 1.
13 The only references to children in the Refugee Convention itself relate to refugee parents’ freedom as regards the religious education of their children (art 4), and the effect on an adult refugee’s right to employment of having one or more children possessing the nationality of the country of residence (art 17(2)(c)). Even the article on public education fails to specifically mention age or childhood (art 22).
16 ‘Indeed, the UNHCR policy can legitimately be described as an attempt to operationalize the CRC in situations of human displacement. While only states can be parties to the CRC, UNHCR applies the Convention to all aspects of its work with refugee children and considers itself to be accountable for the implementation of CRC standards’: J Crisp, ‘Meeting the Needs and Realizing the Rights of Refugee Children and Adolescents: From Policy to Practice’ (1996) 15(3) Refugee Survey Quarterly 1, 12.
17 ‘Although many of the components of this policy can be found in UNHCR’s Guidelines on Refugee Children [which predated the CRC], or derive from the [CRC], their assimilation into the global policy of the Office reflects a new level of priority that the High Commissioner has come to assign to meeting the specific protection and assistance needs of refugee children’: UNHCR, ‘UNHCR Policy on Refugee Children’ (1993) EC/SCP/82 para 6.
18 ibid para 17. The ‘UNHCR Policy on Refugee Children’ was followed by a revised set of operational guidelines on refugee children in 1994: UNHCR, Refugee Children: Guidelines on Protection and Care (UNHCR 1994) (‘1994 Guidelines’). The 1994 Guidelines were intended to combine ‘the concept of “children’s rights” with UNHCR’s ongoing efforts to protect and assist refugee children’ (at 14). In its introductory remarks, UNHCR refers to the two ancestral branches of the 1994 Guidelines (at 13): ‘This book of Guidelines has its ancestors. On one side of the family tree is the human rights branch, which includes the most recent forebear, the [CRC]. On the other side is the UNHCR branch’. The introduction goes on to state (at 19–20): ‘UNHCR [applies] the CRC to its own work by using the rights as guiding principles … At the beginning of each chapter of these Guidelines, the rights in the CRC are stated as UNHCR’s standards … For the well-being of refugee children, UNHCR advocates the observance of CRC standards by all States, international agencies and non-governmental organizations’.
19 UNHCR ExCom, ‘General’ No 71 (XLIV) (1993) (reproduced in UNHCR, Conclusions Adopted by the Executive Committee on the International Protection of Refugees (2009) 97) para (w).
20 UNHCR ExCom, ‘Conclusion on Refugee Children and Adolescents’ No 84 (XLVIII) (1997) (reproduced in UNHCR, Conclusions Adopted by the Executive Committee on the International Protection of Refugees (2009) 125).
21 ibid para (c).
22 UNHCR ExCom, ‘Conclusion on Children at Risk’ No 107 (LVIII) (2007) (reproduced in UNHCR, Conclusions Adopted by the Executive Committee on the International Protection of Refugees (2009) 190) para (b)(x).
24 UNHCR, ‘Guidelines on International Protection: Child Asylum Claims under Article 1A(2) and 1F of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees’ (2009) HCR/GIP/09/08 (‘2009 Guidelines’) para 1.
25 The original proposal for what became art 22, submitted by Denmark in 1981, simply applied to the ‘the refugee child’ (‘Report of the Working Group on a Draft Convention on the Rights of the Child’ (n 11) para 125(c)). Several delegates considered that the provision should cover ‘two different categories of refugee children (those already accorded refugee status and those who found themselves in a transitional state)’ and the draft provision was extended to also capture ‘a child who is seeking refugee status’: Working Group to the Commission on Human Rights, ‘Report of the Informal Open-Ended Working Group on the Rights of the Child’ (1982) E/CN.4/1982/30/Add.1 paras 94 and 99 respectively.
29 The point is elegantly made in UNHCR, ‘Handbook on Procedures and Criteria for Determining Refugee Status’ (2nd edn 1992, reissued 2011) HCR/1P/4/ENG/REV.3 (‘Handbook’) para 28: ‘A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee.’ For judicial support see eg R (ST) v Secretary of State for the Home Department  EWCA Civ 643;  1 WLR 2858 paras 31–32.
31 OAU Convention (n 27); Cartagena Declaration on Refugees, Annual Report of the Inter-American Commission on Human Rights, OAS Doc OEA/Ser.L/V/II.66/doc.10, rev.1 (1984–85) (‘Cartagena Declaration’).
32 Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on Standards for the Qualification of Third-Country Nationals or Stateless Persons as Beneficiaries of International Protection, for a Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection Granted  OJ L 337/9.
33 This point is explicitly made in Japan’s statement after the adoption of the CRC: ‘the delegation of Japan accepted article 22 on the understanding that this provision was not intended to request the States to take further measures in addition to the present procedures for the recognition of refugees in accordance with their international obligations and their national laws on refugees’: E/CN.4/1989/48 (1989) para 722. The Netherlands made a declaration expressly providing that its government ‘understands the term “refugee” in [art 22(1)] as having the same meaning as in article 1 of the [Refugee Convention]’: 1855 UNTS 420, 421.
34 Working Group to the Commission on Human Rights, ‘Report of the Informal Open-Ended Working Group on the Rights of the Child’ (n 25) para 94.
35 Van Bueren (n 4) (1998) 361.
37 ibid art 31(3)(c).
38 CRC GC 6 (n 11) para 74.
39 UNHCR, ‘2009 Guidelines’ (n 24) para 13. See generally J Pobjoy, ‘A Child Rights Framework for Assessing the Status of Refugee Children’ in S Juss and C Harvey (eds), Contemporary Issues in Refugee Law (Edward Elgar 2013) 91, 121–29.
40 For a comprehensive review see Pobjoy, The Child in International Refugee Law (n 15) chs 3–5). For an exhaustive treatise on the refugee definition see J C Hathaway and M Foster, The Law of Refugee Status (2nd edn CUP 2014). For a more detailed account of the difficulties faced by children in satisfying the refugee definition see generally Pobjoy, ‘A Child Rights Framework’ (n 39); C Smyth, European Asylum Law and the Rights of the Child (Routledge 2014); J Bhabha, Child Migration and Human Rights in a Global Age (Princeton University Press 2014); T Löhr, Die kinderspezifische Auslegung des völkerrechtlichen Flüchtlingsbegriffs (Nomos 2009). See also J Bhabha and M Crock, Seeking Asylum Alone: A Comparative Study (Themis Press 2007); M Crock, ‘Lonely Refuge: Judicial Responses to Separated Children Seeking Refugee Protection in Australia’ (2005) 22(2) Law in Context 120; M Crock, ‘Re-Thinking the Paradigms of Protection: Children as Convention Refugees in Australia’ in J McAdam (ed), Forced Migration, Human Rights and Security (Hart Publishing 2008) 155; G Sadoway, ‘Refugee Children before the Immigration and Refugee Board’ (1996) 15(5) Refuge 17; D Anker, N Kelly, J Willshire Carrera, and S Ardalan, ‘Mejilla-Romero: A New Era for Child Asylum’, 12-09 Immigration Briefings 1 (September 2012).
42 Hathaway and Foster (n 40) 30–49.
43 See eg: R (TS) v SSHD  EWHC 2614 (Admin); R (BT) v SSHD  EWCA Civ 1446; ALJ and A, B and C’s Application for Judicial Review  NIQB 88; R (MA) v SSHD (CJEU, C-648/11, 6 June 2013); ‘Opinion of Advocate General Cruz Villalón’, Opinion in R (MA) v SSHD (21 February 2013); R (ZAT and ors) v SSHD  UKUT 61; SSHD v ZAT  1 WLR 4894. In the European context, this is codified in art 6(1) of Council Regulation (EU) No 604/2013 (‘Dublin III’), which states that ‘[t]he best interests of the child shall be a primary consideration for Member States with respect to all procedures provided for in [the] Regulation’. This is complemented by recital 13, which provides that ‘the best interests of the child should be a primary consideration of Member States when applying this Regulation. In assessing the best interests of the child, Member States should, in particular, take due account of the minor’s well-being and social development, safety and security considerations and the views of the minor in accordance with his or her age and maturity, including his or her background. In addition, specific procedural guarantees for unaccompanied minors should be laid down on account of their particular vulnerability’. Art 8(1) of Dublin III further provides that ‘[w]here the applicant is an unaccompanied minor, the Member State responsible shall be that where a family member of a sibling of the unaccompanied minor is legally present, provided that it is in the best interests of the minor’: see too art 8(2) and recitals 16, 24, 35, and 39. Although less secure, Council Regulation (EC) No 343/2003 contains similar provisions to arts 6(1) and 8(1) of Dublin III: see arts 6 and 15(3).
44 See UNHCR, 2009 Guidelines (n 24) para 72; UNHCR, Handbook (n 29) paras 213–15; UNHCR, ‘Note on Refugee Children’ (1987) EC/SCP/46 para 15; UNHCR, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (1997) (‘Unaccompanied Children Guidelines’) para 8.6.
48 J C Hathaway, The Law of Refugee Status (Butterworths 1991) 104–05. For an overview of the widespread endorsement of this definition see Hathaway and Foster (n 40) 185, 196–97.
52 TA0-05472 (IRB, 30 May 2001) 13. In another case, involving a 16-year-old Chinese boy at risk of being sent into debt bondage overseas by his father, the Immigration and Refugee Board placed emphasis on the fact that the criminal laws prohibiting violence against children were ‘seldom invoked’ and thus afforded limited protection to children at risk of domestic abuse: V99-02929 (IRB, 21 February 2000).
54 Zhu v Canada (Minister of Citizenship and Immigration) 2001 FCT 884 para 28, approved in Lorne v Canada (MCI) 2006 FC 384;  FCJ No 487 para 18. See also Bueckert v Canada (MCI) 2011 FC 1042;  FCJ No 1335 para 18 where the Court stated: ‘[It] is not immediately apparent how anyone that age could ever personally test the adequacy of state protection’. The child was 3 years old at the time of the initial decision.
55 UNHCR, 2009 Guidelines (n 24) paras 53–57; RA (AP) v SSHD  CSOH 68 para 25; Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on Standards for the Qualification of Third-Country Nationals or Stateless Persons as Beneficiaries of International Protection, for a Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection Granted  OJ L 337/9 (‘EU Qualification Directive’) recital 27.
58 ibid para 11. See eg: Polovchak v Meese 774 F 2d 731, 737 (7th Cir, 1985); Canjura-Flores v INS 784 F 2d 885, 887 (9th Cir, 1985) 887; Salaam v INS 229 F 3d 1234, 1238 (9th Cir, 2000). An interesting recent development in the United States has been the increased reliance on the ‘political opinion’ ground in claims brought by children who have resisted gang recruitment in their home country. See eg Harvard Immigration Refugee Clinic Program, ‘Brief of Amici Curiae Harvard Immigration and Refugee Clinical Program and Other Immigration Rights Advocates in Support of Petitioner’, filed in José Fuentes-Colocho v United States Attorney General (19 November 2013).
61 See eg V99-03532 (IRB, 12 October 2001), noting that ‘[t]here is considerable case law to the effect that “children” can be considered a particular social group’. See also: Canada (Minister of Citizenship and Immigration) v Li  FCJ No 620 para 11; Xiao v Canada (MCI) 2001 FCT 195;  FCJ No 349 para 14; Li v Canada (MCI)  198 FTR 81 para 22.
63 See eg T93-09636, T93-09638 and T93-09639 (IRB, 26 January 1994) 9. A similar approach can be seen in New Zealand, where decision makers have had little difficulty in finding that an applicant’s risk of being persecuted arises ‘by virtue of his membership of a particular social group, namely “children” ’: Refugee Appeal Nos 76494 and 76495 (RSAA, 23 November 2010) para 76.
64 A child may also be at risk because of her membership in her family; eg because her family is at risk of being targeted by external forces because of the status or activities of a family member, or, increasingly, where the risk derives from inside the family itself (eg cases of domestic violence). Decision makers have had no difficulty in finding that the family constitutes a particular social group: Hathaway and Foster (n 40) 445–49.
66 UNHCR, 2009 Guidelines (n 24) para 61; UNHCR, ‘Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention Relating to the Status of Refugees’ (4 September 2003) para 91. For an excellent analysis of the implications of art 1F with respect to child soldiers see M Happold, ‘Excluding Children From Refugee Status: Child Soldiers and Article 1F of the Refugee Convention’ (2002) 17 American University International Law Review 1131.
68 UNHCR, Handbook (n 29) paras 196, 204.
69 UNHCR, Handbook (n 29) para 219 (emphasis added). See also CRC GC 6 (n 11) para 71; UNHCR, 2009 Guidelines (n 24) para 73, citing International Committee of the Red Cross, Inter-Agency Guiding Principles on Unaccompanied and Separated Children (2004) 61; UNHCR, 1994 Guidelines (n 18) 101; UNHCR, UNICEF and Save the Children, Separated Children in Europe Programme, Statement of Good Practice (4th revised edn, Separated Children in Europe Programme 2009) 36. The UNHCR has emphasized that this principle applies to the assessment of age: UNHCR, Unaccompanied Children Guidelines (n 44) para 5.11; UNHCR ExCom, ‘Conclusion on Children at Risk’, No 107 (LVIII) (2007) (reproduced in UNHCR, Conclusions Adopted by the Executive Committee on the International Protection of Refugees (2009) 190) para (g)(ix); UNHCR, ‘2009 Guidelines’ (n 24) para 73.
70 Memorandum from Jeff Weiss, Acting Director, Office of International Affairs, INS, ‘Guidelines for Children’s Asylum Claims’ (File No 120/11.26, 10 December 1998) 26; US Citizenship and Immigration Services (‘USCIS’) Asylum Division, ‘Asylum Officer Basic Training Course: Guidelines for Children’s Asylum Claims’ (21 March 2009) 34–35, 42.
72 ibid. See also case law in the United Kingdom (AA (unattended children) Afghanistan CG  UKUT 00016 para 117 (‘[i]n assessing the appellant’s evidence we have borne in mind that … benefit of the doubt should be applied liberally in his favour’); TN (Afghanistan) v SSHD  EWCA Civ 1609;  1 WLR 2095 para 21; HK (Afghanistan) v SSHD  EWCA Civ 315 para 34; DS (Afghanistan) v SSHD  EWCA Civ 305 para 14; ZJ (Afghanistan) v SSHD  EWCA Civ 799 para 16); United States (Abay v Ashcroft, 368 F 3d 634, 640 (6th Cir, 2004)); and Canada (Canada (MCI) v Patel 2008 FC 747 para 11; T93-02403 (IRB, 15 March 1994) 4 (‘[a]n unaccompanied claimant who is a young child may be entitled to a substantial degree of flexibility and accommodation in determining his or her claim, as well as a liberal application of the benefit of the doubt’)).
73 IRB, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues (30 September 1996) 4–6; INS, ‘Guidelines for Children’s Asylum Claims’ (n 70) 26–27; MRT and RRT, Guidance on the Assessment of Credibility (March 2012) (‘MRT/RRT Credibility Assessment Guidance’) para 4.7; UKBA, Asylum Process Guidance (n 71) paras 16.2–16.4.
76 ‘[E]ven if an applicant is disbelieved, the primary decision-maker … must still consider whether, on any other basis asserted, a fear of persecution exists which is well founded so as to ground the protection claimed’: Abebe v Commonwealth (1999) 197 CLR 510 para 211 (Kirby J). The decision is cited with approval in MRT/RRT, Credibility Assessment Guidance (n 73) para 2.6. INS, ‘Guidelines for Children’s Asylum Claims’ (n 70) 15, similarly provide that where a child tells a fabricated story it remains incumbent on the decision maker to ‘undertake a careful and searching examination of the underlying merits of the child’s case’. See eg the dissent of Judge Stahl in Mejilla-Romero v Holder, 600 F 3d 63, 77 (1st Cir, 2010), criticizing the majority for ‘limiting its analysis to the oral testimony of a child, diagnosed with post traumatic stress disorder (PTSD), and testifying about events that occurred when he was very young’, where ‘[a] review of the record as a whole compels the conclusion that [the applicant] is entitled to the protections afforded to refugees’.
77 CRC GC 6 (n 11) para 77.
78 ibid para 27. See also CRC Committee and CMW, ‘Joint General Comment No 3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 22 (2017) of the Committee on the Rights of the Child on the general principles regarding the human rights of children in the context of international migration’ (17 November 2017) CMW/C/GC/3; CRC/C/GC/22 paras 45–47. Similar to the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (‘ICCPR’), this derives from a state’s obligation to ‘respect and ensure the rights set forth in the [CRC]’ (CRC art 2(1)). In assessing the risk of irreparable harm it is necessary to consider the risks ‘in the country to which removal is to be effected or in any country to which the child may subsequently be removed’: CRC GC 6 (n 11) at para 27.
79 CRC GC 6 (n 11) para 27.
80 ibid para 28.
82 CRC GC 6 (n 11) para 28.
83 ICCPR (n 78).
85 This language is adopted by Justice Blake, former President of the Upper Tribunal: N Blake, ‘Current Problems in Asylum and Protection Law: The UK Judicial Perspective’ (Paper presented at the Ninth World Conference of the International Association of Refugee Law Judges, Slovenia, 7 September 2011) 10.
86 For a detailed exposition of this argument see J Pobjoy, ‘The Best Interests of the Child Principle as an Independent Source of International Protection’ (2015) 64(2) International Comparative Law Quarterly 327; Pobjoy, The Child in International Refugee Law (n 15) ch 6.
87 See in particular: J McAdam, Complementary Protection in International Law (OUP 2007) 173–96; Goodwin-Gill, ‘Unaccompanied Refugee Minors’ (n 6); G S Goodwin-Gill, ‘Expert roundtable discussion on “The United Nations Convention on the Rights of the Child and Its Application to Child Refugee Status Determination and Asylum Processes”—Introduction’ (2012) 26(3) Journal of Immigration, Asylum and Nationality Law 226; S Bolton, ‘Promoting the Best Interests of the Child in UK Asylum Law and Procedures’ (2012) 26(3) Journal of Immigration, Asylum and Nationality Law 232; A Lundberg, ‘The Best Interests of the Child Principle in Swedish Asylum Cases: The Marginalization of Children’s Rights’ (2011) 3(1) Journal of Human Rights Practice 49; B Carr, ‘Incorporating a “Best Interests of the Child” Approach into Immigration Law and Procedure’ (2009) 12 Yale Human Rights and Development Law Journal 120; J K Dalrymple, ‘Seeking Asylum Alone: Using the Best Interests of the Child Principle to Protect Unaccompanied Minors’ (2006) 26 Boston College Third World Law Journal 131.
88 See in particular CRC GC 6 (n 11) which provides that ‘[r]eturn to the country of origin shall in principle only be arranged if such return is in the best interests of the child’ (at para 84). See also ibid paras 85–88; CRC Committee and CMW, ‘Joint General Comment No 3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 22 (2017) of the Committee on the Rights of the Child on the general principles regarding the human rights of children in the context of international migration’ (17 November 2017) CMW/C/GC/3; CRC/C/GC/22 paras 27–33. See further CRC Committee, Report of the 2012 Day of General Discussion: The Rights of All Children in the Context of International Migration (2013) para 72; Office of the UN High Commissioner for Human Rights, ‘Study of the Office of the United Nations High Commissioner for Human Rights on Challenges and Best Practices in the Implementation of the International Framework for the Protection of the Rights of the Child in the Context of Migration’ (2010) A/HRC/15/29 paras 46–47; UNHCR, Unaccompanied Children Guidelines (n 44) para 9.2; UNHCR ExCom, ‘Conclusion on Children at Risk’ (n 69) paras (b), (g).
89 For a précis of the case law see Pobjoy, ‘The Best Interests of the Child Principle as an Independent Source of International Protection’ (n 85).
90 CRC GC 6 (n 11) para 87.
92 Issues facing accompanied refugee children have received less scholarly attention than unaccompanied children, although there are some notable exceptions: P Tuitt, ‘The State, the Family and the Child Refugee’ in D Fottrell (ed), Revisiting Children’s Rights: 10 years of the UN Convention on the Rights of the Child (Kluwer Law International 2000) 149; J Bhabha, ‘ “More Than Their Share of Sorrows”: International Migration Law and the Rights of Children’ (2003) 22 Saint Louis University Public Law Review 253; J Bhabha, ‘Un “Vide Juridique”?—Migrant Children: The Rights and Wrongs’ in C Bellamy and J Zermattan (eds), Realizing the Rights of the Child (Rueffer und Rub 2007) 206; D Thronson, ‘Choiceless Choices: Deportation and the Parent-Child Relationship’ (2006) 6 Nevada Law Journal 1165; D Thronson, ‘Kids Will Be Kids? Reconsidering Conceptions of Children’s Rights Underlying Immigration Law’ (2002) 63 Ohio State Law Journal 979; L Melo, ‘When Children Suffer: The Failure of US Immigration Law to Provide Practical Protection for Persecuted Children’ (2010) 40 Golden Gate University Law Review 263.
94 See generally Pobjoy, ‘A Child Rights Framework’ (n 39) 119–21.
95 ‘Appropriate measures required under article 22(1) of the [CRC] must take into account the particular vulnerabilities of unaccompanied and separated children and the national legal framework and conditions’: CRC GC 6 (n 11) para 68.
96 In interpreting a comparable phrase, the CRC Committee has stated that ‘[t]he term “appropriate” refers to the broad range of measures cutting across all sectors of Government, which must be used and be effective in order to prevent and respond to all forms of violence’: CRC Committee, ‘General comment No.13: The right of the child to freedom from all forms of violence’ (2011) CRC/C/GC/13 para 39.
97 See in particular CRC GC 6 (n 11) paras 13–14, 64; CRC Committee, ‘General Comment No 5: General Measures of Implementation of the Convention on the Rights of the Child (Articles 4, 42, and 44(6))’ (2003) CRC/GC/2003/5 (‘CRC GC 5’) paras 18–23.
98 CRC GC 6 (n 11) para 16.
99 CRC Committee, CO Guinea, (13 June 2013) CRC/C/GIN/CO/2 para 76; CO Andorra, (3 December 2012) CRC/C/AND/CO/2 para 44; CO Algeria, (18 July 2012) CRC/C/DZA/CO/3-4 para 66; CO Singapore, (2 May 2011) CRC/C/SGP/CO/2-3 para 61; CO Ecuador, (2 March 2010) CRC/C/ECU/CO/4 para 67.
102 CRC Committee, CO Israel, (4 July 2013) CRC/C/ISR/CO/2-4 para 70(b); CO Uzbekistan, (10 July 2013) CRC/C/UZB/CO/3-4 para 62(a); CO Italy (n 100) para 65(a); CO Sudan, (22 October 2010) CRC/C/SDN/CO/3-4 para 69.
103 CRC Committee, CO Israel (n 102) para 24, 70(b); CO Albania, (7 December 2012) CRC/C/ALB/CO/2-4 para 73; CO Canada, (6 December 2012) CRC/C/CAN/CO/3-4 para 74(b); CO Australia, (28 August 2012) CRC/C/AUS/CO/4 para 81(b); CO Greece, (13 August 2012) CRC/C/GRC/CO/2-3 para 63(c); CO Belarus, (8 April 2011) CRC/C/BLR/CO/3-4 para 68(a); CO Spain, (3 November 2010) CRC/C/ESP/CO/3-4 para 60(e); CO Argentina, (21 June 2010) CRC/C/ARG/CO/3-4 para 72; CO Norway (n 100) para 52(j).
104 CRC Committee, CO Australia (n 103) para 81(b); CO Republic of Korea, (2 February 2012) CRC/C/KOR/CO/3-4 para 65; CO Belarus (n 103) para 68(b); CO Spain (n 103) para 60(i); CO Tajikistan, (5 February 2010) CRC/C/TJK/CO/2 para 64(a).
105 CRC Committee, CO Slovenia, (8 July 2013) CRC/C/SVN/CO/3-4 para 67(a)–(b); CO Austria (3 December 2012) CRC/C/AUT/CO/3-4 para 55; CO Canada (n 103) para 74(c); CO Australia (n 103) para 81(c); CO Cyprus, (24 September 2012) CRC/C/CYP/CO/3-4 para 47(b); CO Greece, (13 August 2012) (n 103) para 63(a)–(b); CO Denmark, (7 April 2011) CRC/C/DNK/CO/4 para 58(b); CO Ukraine, (21 April 2011) CRC/C/UKR/CO/3-4 para 73(b); CO Norway, (3 March 2010) (n 101) para 52(b).
106 CRC Committee, CO Slovenia, (n 105) para 65(c); CO Canada, (n 103) para 74(d); CO Azerbaijan, (12 March 2012) CRC/C/AZE/CO/3-4 para 67(a); CO Finland, (3 August 2011) CRC/C/FIN/CO/4 para 61(a); CO Japan, (20 June 2010) CRC/C/JPN/CO/3 para 78(b); CO Norway, (n 101) para 52(c); CO Paraguay, (10 February 2010) CRC/C/PRY/CO/3 para 63.
107 CRC Committee, CO Spain, (3 November 2010) (n 103) para 60(f).
109 See section I.B. in this chapter.
113 See (n 11) and accompanying text.
114 CRC art 22(1). C P Cohen, ‘The United Nations Convention on the Rights of the Child: Implications for Change in the Care and Protection of Refugee Children’ (1991) 3 International Journal of Refugee Law 675, 689.
115 The draft initially required that States Parties ‘shall ensure that [a child] receives adequate protection and assistance in the enjoyment of the rights contained in the Convention’ (emphasis added): Working Group to the Commission on Human Rights, ‘Report of the Informal Open-Ended Working Group on the Rights of the Child’ (n 25) para 97). After consideration by a Working Party, the compromise text required that State Parties ‘shall take appropriate measures to ensure that a child … receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in this Convention and other international human rights or humanitarian instruments’ (emphasis added): ibid E/CN.4/1982/Add.1 para 99).
117 ibid. This has been affirmed by the CRC Committee which has observed, in the context of unaccompanied or separated children, that efforts to find durable solutions ‘should be initiated and implemented without undue delay and, wherever possible, immediately upon the assessment of a child being unaccompanied or separated’: CRC GC 6 (n 11) para 79.
120 CRC art 12. See section II.D.3. of this chapter and chapter 12 of this Commentary.
121 CRC art 3. See section II.D.2. of this chapter and chapter 3 of this Commentary. See generally UNHCR and UNICEF, Safe and Sound: what States can do to ensure respect for the best interests of unaccompanied and separated children in Europe (UNHCR October 2014).
122 An obvious parallel can be found in the context of adoption, where decision makers are generally required to reach a decision that will be in the long-term best interests of the child. eg in the UK ‘[t]he paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life’: Adoption and Children Act 2002 s 1(2) (emphasis added).
124 CRC art 3(1). The overarching art 3(1) provision is complemented by art 3(2), which relates to the well-being of the child, and art 3(3), which obliges states to ensure that institutions, services, and facilities for children comply with the established standards, and that mechanisms are in place to ensure that the standards are respected.
125 CRC GC 6 (n 11) para 19.
126 CRC Committee, ‘General Comment No 14 on the Rights of the Child to Have His or Her Best Interests Taken as a Primary Consideration (Article 3, Paragraph 1)’ (2013) CRC/C/GC/14 (‘CRC GC 14’) para 6.
129 See generally J Tobin, ‘Judging the Judges: Are They Adopting the Rights Approach in Matters Involving Children?’ (2009) 33 Melbourne University Law Review 579; and J Tobin, ‘Justifying Children’s Rights’ (2013) 21 International Journal of Children’s Rights 395.
130 See also CRC art 12, discussed at section II.D.3.
131 The point is made cogently by the former UNHCR Assistant High Commissioner, Erika Feller: ‘What is clear is that, in deciding on the best interests of the child, attention has to be paid to the need to involve children in the making of decisions that affect them … Put another way, the “best interest of the child” should be properly understood to accommodate an opportunity for the child to determine what those best interests are, even where this, in the final analysis, is not held to be determinative of what is in the best interests in the individual case’: UNHCR, ‘Statement by Ms Erika Feller, Director, Department of International Protection, UNHCR: The Right to Be Heard for Separated Children Seeking Asylum in Europe, Working Group I — Asylum and Migration’, Norrköping, Sweden, DIP Statements (1 March 2001).
132 CRC Committee, ‘General Comment No 12: The Right of the Child to Be Heard’ (2009) CRC/C/GC/12 (‘CRC GC 12’) para 74. See also CRC GC 14 (n 126) paras 43, 53–54. The relationship between art 3 and art 12 received considerable attention during the drafting of the CRC. Indeed, art 12(2) initially formed a sub-paragraph of art 3, on the basis that ‘it followed logically from paragraph 1 of article 3 as a means by which judicial or administrative authorities could ascertain a child’s best interests in a given case’: ‘Report of the Working Group on a Draft Convention on the Rights of the Child’ (n 11) para 28.
133 EU Qualification Directive (n 55) recital 18.
134 ‘A determination of what is in the best interests of the child requires a clear and comprehensive assessment of the child’s identity, including her or his nationality, upbringing, cultural and linguistic background, particular vulnerabilities and protection needs’: CRC GC 6 (n 11) para 20. See also CRC GC 14 (n 126) paras 48, 75; Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection (Inter-American Court of Human Rights, Advisory Opinion OC-21/14, 19 August 2014) para 71.
135 CRC GC 14 (n 126) para 76.
136 J Tobin, ‘Beyond the Supermarket Shelf: Using a Rights Based Approach to Address Children’s Health Needs’ (2006) 14 International Journal of Children’s Rights 275, 287. See also P Alston, ‘The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights’ in P Alston (ed), The Best Interests of the Child: Reconciling Culture and Human Rights (OUP 1994) 1, 19; M Freeman, A Commentary on the United Nations Convention on the Rights of the Child: Article 3—The Best Interests of the Child (Martinus Nijhoff Publishers 2007) 9.
137 See Pobjoy, ‘The Best Interests of the Child Principle’ (n 85).
139 CRC GC 12 (n 132) para 123. See also CRC GC 6 (n 11) para 25; UNHCR, 2009 Guidelines (n 24) para 8. As to judicial engagement with art 12 of the CRC in the immigration context, see: ZH (Tanzania) v SSHD  UKSC 4;  2 AC 166 paras 34, 37; H (H) v Deputy Prosecutor of the Italian Republic, Genoa  UKSC 25;  1 AC 338 para 85; Baker v Canada (MCI)  2 SCR 817 para 7; X v MIMA (1999) 92 FCR 524 para 39; Ye v Minister of Immigration  NZSC 76 paras 51–53.
140 CRC GC 6 (n 11) para 25.
142 See section II.D.2.
143 See section II.D.1.
146 CRC GC 6 (n 11) paras 23–24.
147 See also CRC GC 6 (n 11) paras 81–82 (emphasis added).
148 In contrast see CRC art 3(1), which provides that ‘the best interests of the child shall be a primary consideration’. As one commentator notes, ‘[the] flexible and relativistic formula [in art 3] is transformed by article 9 into a standard that makes the child’s best interests the single overriding factor determining whether a child may be separated from parents against their will’: E F Abram, ‘The Child’s Right to Family Unity in International Immigration Law’ (1995) 17 Law and Policy 397, 419.
149 ICCPR (n 78) art 17(1).
151 ‘No public interest can justify the negation of family unity, only private interest of a child. Under the CRC, a country’s economic absorptive capacity or domestic unemployment cannot justify the separation of a child from parents. The principle of progressive implementation of rights subject to available national resources is applied by article 4 of the [CRC] to “economic, social and cultural rights.” The child’s right to live with the parents is not economic, social or cultural; it is an individual human right, which may be denied only for the child’s best interests’: Abram, ‘The Child’s Right to Family Unity’ (n 148) 418.
152 ZH (Tanzania) v SSHD (n 139) para 25 (Baroness Hale). This list derives from art 9(4).
153 ibid para 25. This finding is obiter only, as art 9 was not in fact relevant to the claim before the Supreme Court: it was open to the children to return to Tanzania with their mother without a risk of harm. The Court was therefore correct to apply the art 3 best interests standard, rather than art 9(1). Courts in New Zealand, Canada, and the United States have interpreted art 9 in a similar way. See in New Zealand: Chief Executive, Ministry of Business, Innovation and Employment v Liu  NZCA 37 paras 18–28; Ye v Minister of Immigration  NZCA 291 para 69; Zanzoul v Removal Review Authority  NZHC 687 paras 143–47; in contrast see: Liu v Chief Executive, Department of Labour  NZHC 2753; Huang v Minister of Immigration  NZCA 377 para 29; A v Chief Executive, Department of Labour  NZAR 981 para 31; Tavita v Minister of Immigration  2 NZLR 257. See also in Canada: Simoes v Canada (Minister of Citizenship and Immigration)  FCJ No 936 (QL) para 15. See in the United States: Cabrera-Alvarez v Gonzales 423 F 3d 1006, 1011 (9th Cir, 2005); in contrast see: Abebe v Ashcroft 379 F 3d 755, 764 (9th Cir, 2004) (Judge Ferguson, dissenting).
158 See section III.C. in this chapter.
160 ‘Birth registration is essential to enable date and place of birth to be conclusively established, thereby activating certain rights, including those rights which are dependent upon nationality and personal status. Those basic human rights can be violated in refugee situations unless particular attention is given to ensuring the proper documentation of children’: UNHCR, 1994 Guidelines (n 18) 103–04.
161 See eg: CRC Committee, Report of the 2012 Day of General Discussion (n 88) paras 31, 77; CRC Committee, CO Republic of Korea (n 104) para 65; CO Ukraine (n 105) para 73(f); CO Ethiopia, (24 January 1997) CRC/C/15/Add.67 para 29; UNHCR, 1994 Guidelines (n 18) 107; UNHCR ExCom, ‘Conclusion No 47 on Refugee Children’ (n 8) para (f).
163 CRC GC 6 (n 11) para 41. See generally chapters 28 and 29 of this Commentary.
164 The importance of the right to an education for refugee children is recognized in art 22 of the Refugee Convention, which requires that refugees be accorded equivalent treatment to nationals with respect to primary education, and treatment at least as favourable as that accorded to aliens generally in the same circumstances with respect to secondary and tertiary education. See generally J C Hathaway, The Rights of Refugees under International Law (CUP 2005) 584–613.
167 CRC Committee, CO Kuwait, (29 October 2013) CRC/C/KWT/CO/2 para 69; CO Israel, (n 102) para 70(a); CO Albania, (n 103) para 73; CO Republic of Korea (n 104) para 65; CO Egypt, (15 July 2011) CRC/C/EGY/CO/3-4 para 77(a); CO Afghanistan, (8 April 2011) CRC/C/AFG/CO/1 para 63; CO Denmark (n 105) para 58(e).
168 UNHCR ExCom, ‘Conclusion No 47 on Refugee Children’ (n 8) para (o).
173 CRC GC 6 (n 11) para 42.
176 CRC GC 6 (n 11) paras 33–40.
177 CRC GC 6 (n 11) paras 33–38.
179 ibid. For further discussion on the parameters within which care and accommodation arrangements should be made see CRC GC 6 (n 11) para 40.
184 UNHCR ExCom, ‘Conclusion No 47 on Refugee Children’ (n 8) para (q).
186 CRC GC 6 (n 11) para 47.
190 UNHCR, ‘Conclusion No 47 on Refugee Children’ (n 8) para (e).
193 ibid. See eg discussion of the UN Human Rights Committee in HR Committee, Views: Communication No 1069/2002 (2003) CCPR/C/79/D/1069/2002 (‘Bakhtiyari v Australia’) para 9.7 where the HR Committee observed that the children in that case (who had been detained for two years and eight months prior to their release on interim orders of the Family Court) had ‘suffered demonstrable, documented and on-going adverse effects of detention’.
194 CRC GC 6 (n 11) para 61: ‘In application of article 37 of the [CRC] and the principle of the best interests of the child, unaccompanied or separated children should not, as a general rule, be detained.’ UNHCR, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention (UNHCR 2012) para 51: ‘[C]hildren … should in principle not be detained at all’. UNHCR, 1994 Guidelines (n 18) 86: ‘It is UNHCR’s policy that refugee children should not be detained’.
195 CRC GC 6 (n 11) para 61. As the ECtHR has recognized in Muskhadzhiyeva v Belgium App No 41442/07 (Chamber judgment, 19 January 2010) the extreme vulnerability of a child was paramount and took precedence over his or her status as an illegal alien: para 56.
197 By way of illustration in Australia, see Australian Human Rights Commission, The Forgotten Children: National Inquiry into Children in Immigration Detention (Australian Human Rights Commission 2014); Plaintiff M70/2011 v Minister for Immigration and Citizenship  HCA 32; (2011) 244 CLR 144. See generally A Edwards, Back to Basics: The Right to Liberty and Security of Person and ‘Alternatives to Detention’ of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants, Legal and Protection Policy Research Series (UNHCR 2011) 45–48; B Harrell-Bond, ‘Are Refugee Camps Good for Children?’ Working Paper No 29 (2000).
198 CRC art 37(b). See generally UNHCR, ‘Guidelines on the Applicable Criteria and Standards relating to Detention’ (n 194) paras 51–57.
200 CRC GC 6 (n 11) para 63.
204 The original proposal was more widely cast, making no reference to a requirement that states be party to the other human rights or humanitarian instruments. This would have effectively expanded the obligations of states beyond those instruments to which they were a party when dealing with refugee children or children seeking refugee status. The additional requirement was suggested by France and included in the final draft as adopted: see Working Group to the Commission on Human Rights, ‘Report of the Informal Open-Ended Working Group on the Rights of the Child’ (n 25) para 100.
205 CRC art 41. See also CRC GC 6 (n 11) para 76: ‘Unaccompanied or separated children recognized as refugees and granted asylum do not only enjoy rights under the 1951 Refugee Convention, but are also entitled to the fullest extent to the enjoyment of all human rights granted to children in the territory or subject to the jurisdiction of the State, including those rights which require a lawful stay in the territory’.
206 Refugee Convention (n 9).
210 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (n 5); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (n 5); Geneva Convention Relative to the Treatment of Prisoners of War (n 5); Fourth Geneva Convention (n 5); and the Additional Protocols: Additional Protocol I (n 6); Additional Protocol II (n 6); and Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem (Protocol III) (adopted 8 December 2005, entered into force 14 January 2007) 2404 UNTS 261.
211 ACRWC (n 41).
212 The CRC Committee has produced a non-exhaustive list of international instruments, in addition to the two Optional Protocols to the CRC, which the CRC Committee recommends that State Parties ratify: see CRC GC 5 (n 97) para 17 and annex I.
213 Universal Declaration of Human Rights, UNGA Res 217(III)(A), A/810 (1948); ICCPR (n 78); International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3.
220 In proposing the inclusion of an express reference to family reunification the Australian representative noted that ‘in the application of the principle of family unity and for obvious humanitarian reasons every effort should be made to ensure the reunification of separated refugee families’: Working Group to the Commission on Human Rights, ‘Report of the Informal Open-Ended Working Group on the Rights of the Child’ (n 25) para102.
222 Working Group to the Commission on Human Rights, ‘Report of the Informal Open-Ended Working Group on the Rights of the Child’ (n 25) para 97.
227 ibid para 104. The drafting history expressly records that the deletion of UNHCR was in no way intended to undermine or belittle the important work done by the organization: ibid para 103. The significance of the work of UNHCR is expressly noted by the CRC Committee in its CRC GC 6 (n 11) paras 16, 43, 45,49, 64 (note also the express references to the need to cooperate with UNESCO, UNICEF, the World Health Organisation, and the United Nations Joint Program on HIV/AIDS). It is also repeatedly referred to in the Concluding Observations of the CRC Committee: see, eg, CRC Committee, CO Guinea (n 99) para 76; CO Albania (n 103) para 73; CO Algeria (n 99) para 66; CO Turkey (n 101) para 61; CO Thailand, (17 February 2012) CRC/C/THA/CO/3-4 para 71; CO Syrian Arab Republic, (9 February 2012) CRC/C/SYR/CO/3-4 para 75; CO Panama, (21 December 2011) CRC/C/PAN/CO/3-4 para 65; CO Tajikistan, (n 104) para 65; CO Mozambique, (4 November 2009) CRC/C/MOZ/CO/2 para 76.
228 Commission on Human Rights, ‘Question of a Convention on the Rights of the Child: Report of the Working Group on a draft convention on the rights of the child: Chairman-Rapporteur: Mr Adam Lopatka (Poland)’ (2 March 2989) Doc E/CN.4/1989/48 para 393.
229 This explains the language of the CRC Committee in its Concluding Observations, where it ‘urges’ and ‘recommends’ States Parties to enhance their cooperation with UNHCR and UNICEF: see CRC Committee, CO Guinea (n 98) para 76; CO Mozambique (n 226) para 76.
231 Abram, ‘The Child’s Right to Family Unity’ (n 148) 426.
232 ‘Report of the Working Group on a Draft Convention on the Rights of the Child’ (n 11) para 125(c).
233 This was a result of concerns of some delegates who felt that states should not be obligated to bear the costs of tracing family members in every case or to guarantee the admission of family members for residence: Working Group to the Commission on Human Rights, ‘Report of the Informal Open-Ended Working Group on the Rights of the Child’ (n 25) para 94.
235 The word ‘unaccompanied’ was removed and replaced with the word ‘any’ to make clear that the paragraph covered all refugee children: Working Group to the Commission on Human Rights, ‘Report of the Informal Open-Ended Working Group on the Rights of the Child’ (n 25) paras 391, 394.
237 For support for an expansive understanding of the family unit see CRC art 5, CRC Committee, ‘General Comment No 7: Implementing Child Rights in Early Childhood’ (2006) CRC/C/GC/7/Rev.1 para 15; HR Committee, ‘General Comment No 17: Rights of the Child’ (1989) HRI/GRN/1/Rev.7 para 6; HR Committee, ‘General Comment No 19: Protection of the Family, the Right to Marriage and Equality of the Spouses (Article 23)’ (1990) HRI/GEN/1/Rev.8 para 2.
239 CRC Committee, CO Rwanda, (8 July 2013) CRC/C/RWA/CO/3-4 para 59. See also CRC Committee, CO Burundi, (19 October 2010) CRC/C/BDI/CO/2 para 67; CO South Africa, (22 February 2000) CRC/C/15/Add.122 para 35, CO Djibouti, (28 June 2000) CRC/C/15/Add.131 para 50; CO Malta, (28 June 2000) CRC/C/15/Add.129 para 44; CO Tajikistan, (23 October 2000) CRC/C/15/Add.136 para 45; CO Cambodia, (28 June 2000) CRC/C/15/Add.128 para 57; CO Jordan, (28 June 2000) CRC/C/15/Add.125 para 56; CO Germany, (26 February 2004) CRC/C/15/Add.226 para 55. See also UNHCR ExCom, ‘Family Reunification’ No 24 (XXXII) (21 October 1981); UNHCR ExCom, ‘Conclusion on the Protection of the Refugee’s Family’ No 88 (L) (8 October 1999).
240 ‘In order to pay full respect to the obligation of States under article 9 of the [CRC] to ensure that a child shall not be separated from his or her parents against their will, all efforts should be made to return an unaccompanied or separated child to his or her parents except where further separation is necessary for the best interests of the child, taking full account of the right of the child to express his or her views’: CRC GC 6 (n 11) para 81. See also: UNHCR, Guidelines on Determining the Best Interests of the Child (UNHCR 2008) 72 (‘[r]esettlement is normally in the best interests of the child if it leads to family reunification’); European Commission, Communication from the Commission to the European Parliament and the Council: Action Plan on Unaccompanied Minors (2010–2014), COM(2010)213, 12 (‘[i]t is likely that in many cases the best interest of the child is to be reunited with his/her family and to grow up in his/her own social and cultural environment’).
241 ‘[S]ometimes a parent may do a child more harm than good and it is in the child’s best interests to find an alternative home’: H (H) v Deputy Prosecutor of the Italian Republic, Genoa (n 139) para 33 (Baroness Hale). See eg Ek v Canada (Minister for Citizenship and Immigration)  FCJ No 680 para 33, where the Canadian Federal Court held that the immigration officer had erred in their conclusion that a child should be returned to Cambodia in order to be reunited with her parents and family. The Court considered that the officer had ‘almost completely failed to analyse what hardship would be faced by [the child] if she were forced to leave Canada’, giving only ‘cursory mention to her establishment in Canada and her wishes’ and ‘[n]o real consideration … to her schooling or the bond she had with her aunt, uncle and cousins whom the evidence reveals are her current family’. More generally see CRC GC 6 (n 11) paras 81–83; UNHCR, Guidelines on Determining the Best Interests of the Child (n 240) 71–72; UNICEF, Implementation Handbook (n 11) 316. For academic support, see McAdam, Complementary Protection in International Law (n 87) 181–82; J Bhabha, ‘ “Not a Sack of Potatoes”: Moving and Removing Children across Borders’ (2006) 15 Boston University Public Interest Law Journal 197, 204–05.
242 CRC GC 6 (n 11) para 82. The CRC Committee goes on to state (at para 83) that where family reunification is not possible in the destination country (eg because of country conditions), a state’s obligations under art 10(1) of the CRC will be triggered. This article provides that ‘applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by State Parties in a positive, human and expeditious manner’.