The Need for Sensitive Treatment of Unaccompanied Asylum-seeking Minors under International Public Law and the Common European Asylum System: A Human Rights Based Approach

Abstract

Unaccompanied asylum-seeking minors are exceptionally more vulnerable than adult refugees and children in a normal situation. Most unaccompanied children have personally lived the realities of war, family disintegration, sexual violence, underage recruitment, mal-nutrition, disease and denial of education or health services in their countries of origin. After fleeing persecution and serious violations of human rights, they are often exposed to risks of human trafficking, and are exploited by smugglers to engage in criminal activities. When they reach the country of asylum, unaccompanied minors continue to suffer from lack of protection as they are often considered to be undocumented or illegal immigrants, and are treated in the same way as adults. Regardless the grounds for their immigration status, unaccompanied children should be treated as children living in exceptionally difficult conditions. Although the Convention on the Rights of the Child is the most widely ratified international treaty, there is little discourse around unaccompanied children in the context of asylum and forced migration at both international and regional levels. The international community has failed to explicitly address the rights of refugee children with a specific legal instrument. The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol do not make any distinction between adults and children. In addition, the set of legal standards that apply to adults also apply in the same manner to children. Due to their vulnerability, children, in particular unaccompanied minors, need effective protection and assistance in a systematic and comprehensive manner during the asylum cycle in its totality. Hence, laying down a right based and separate legal foundation for the protection of unaccompanied asylum-seeking minors and the rights attached to it should be the primary step. This will help to ensure a practical and responsive system to address the particular vulnerability and special needs of children in migration.