Challenges in assessing the best interest of the child in the framework of the procedure for granting international protection to children

Challenges in assessing the best interests of the child in the framework of the procedure for granting international protection to children

Authors: Anna Velikova, Denitsa Dimitrova, Janin Al-Shargabi, Sofia Yordanova-Rabacheva

Content:

• Research methodology
• Introduction
• Legal framework
• Case law
• Challenges
• Recommendations

Research methodology

These recommendations are based on the "research through action" method under the Foundation for Access to Rights project - ACTION R. This method includes not only a detailed introduction to the theoretical issues in refugee and migration law, but also involves researching real cases, meeting specialists, observing trials, conducting interviews, discussions with experts, and other activities that aim to build a better understanding of the issues observed. Our team followed the development of two cases of women seeking international protection in Bulgaria, who are victims of violence. One of the cases, in particular, took into consideration the best interests of the child when examining the mother's application for asylum and is taken into consideration within these recommendations. During this project, we also held meetings and discussions with refugee law experts, representatives of organizations and legal practitioners, whose guidance and experience we used to create this text.

Introduction

Every child needs a family. Every child wants to feel safe. The assessment of the “best interests of the child” in refugee law obliges administrative authorities and the courts to focus on the specific needs of the child during the procedure for granting international protection.

The main definition of the concept of the "best interests of the child" (BIC) is presented in Article 3 of the UN Convention on the Rights of the Child[1]. According to it: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. In the context of refugee law, this consideration can be seen as a right, a principle and a procedural safeguard at the same time.

In practice, there are many difficulties in assessing the best interests of the child in Bulgaria. If the procedure for granting international protection is not conducted with a systematic and ongoing assessment of the best interests of the child, it would have an extremely detrimental impact on the child's development and inclusion. From 1^st January to the end of August 2021, 310 children under the age of 14 and 1444 children between the ages of 14 and 18 have applied for international protection in Bulgaria, according to official data from the State Agency for Refugees. It is important to note that without a systematic assessment of the BIC, the procedure for these children cannot have the necessary quality to adequately respond to their needs and to make a correct assessment of their asylum applications.

Legal framework

Main International Legal Instruments

● The UN Convention Relating to the Status of Refugees is the main document regulating the rights of refugees and asylum seekers and part of the international instruments that bind Bulgaria. It does not, however, explicitly address the rights of the children, although they are mentioned, for example, when a desire to seek ways to preserve family unity is expressed when considering asylum applications.

● The UN Convention on the Rights of the Child reflects the fundamental rights of every child - to life, education, protection, etc. Article 22 explicitly obliges the State to provide the necessary protection to refugee or asylum-seeking children, whether accompanied or unaccompanied and to give them access to a procedure for settling their status. As already mentioned, Article 3 introduces the concept of the "best interests of the child" as a primary consideration for all bodies and institutions when making decisions and taking actions affecting children.

Main instruments of European Union law

● The Treaty on European Union (TEU) – Article 3(5) of the TEU mentions the rights of the child as a value and interest of the Union.

● The Charter of Fundamental Rights of the European Union (CFREU) – Article 18 of the CFREU regulates the right to asylum, while Article 24 regulates the rights of the child and the duty to respect their best interests.

● The rights of the children are examined in more detail within the framework of the main instruments regulating the international protection procedures. The best interests of the child are mentioned in: Article 12 of Directive 2011/95/EU, Article 2 and Article 25 of Directive 2013/32/EU, Article 12 of Directive 2013/33/EU, Articles 2, 6, 8 and 20 of Regulation (EU) No 604/2013. Moreover, the above-mentioned directives create substantive obligations for States, such as the right to a representative, access to the procedure, access to information, and the preservation of family ties.

National law

● The situation of asylum-seeking children is mainly covered by the Law on Asylum and Refugees (LAR), which, however, lacks detailed regulations.

○ The principle of taking into account the best interests of the child is enshrined in Article 6a. It provides that the assessment of the best interests of the child shall be carried out in accordance with the provisions of the Child Protection Act.

○ Article 25 of the LAR sets the right to representation of an unaccompanied minor child.

○ Article 25a regulates the required reception conditions for children placed in the territorial units of the State Agency for Refugees and the obligation of the State Agency for Child Protection to monitor the standard of reception conditions.

○ Art. 29, par. 10 and 11 cover details on accommodation. Unaccompanied children shall be placed in a kinship family or with close friends, a foster family, a social or integrated health and social service for residential care under the conditions and in accordance with the procedure laid down in the Child Protection Act or in other places with special conditions for minors. Accompanied children are placed together with the adult accompanying them, usually in an accommodation center within SAR’s territorial units.

○ Art. 34 regulates the right of international protection beneficiaries to reunite with their families on the territory of the Republic of Bulgaria. This can be seen as an element to preserve the best interests of the child.

● The best interests of the child as a term is defined in the Child Protection Act (CPA) in § 1(5) of the Supplementary Provisions. It is an assessment of: the desires and feelings of the child; the physical, mental and emotional needs of the child; the age, sex, background and other characteristics of the child; the danger or harm which has been caused or which is likely to be caused to the child; the ability of the parents to take care for the child; the consequences that will occur for the child if circumstances change; other circumstances, relevant to the child. Moreover, Article 15, para. 6 of the CPA obliges child protection institutions to issue binding opinions when assessing the best interests of the child during proceedings.

Bulgarian case law

The Supreme Administrative Court has ruled (e.g., Decision No.7985 of 28.05.2019 in administrative case No. 790/2018 of the Supreme Administrative Court) on the application of the mandatory provision of Article 15, para. 6 of the Child Protection Act, holding that its violation leads to a substantial breach of the administrative procedure rules.  In this regard, the Court held that the above provision must be interpreted in conjunction with the principle of the “best interests of the child” laid down in the UN Convention on the Rights of the Child. This principle has a fundamental role. Minors are considered a vulnerable group of persons within the meaning of § 1, item 17 of the Additional Provisions of  LAR and Article 6a of LAR, according to which the best interests of the child are of utmost importance when applying the law. Although it is stipulated that the assessment of the best interests of the child is made in accordance with the provisions of the Child Protection Act, there are no standard operating procedures or other documents specifying how it should be carried out.

Respect for the best interests of the child is a fundamental requirement within the international protection procedure in order for it to be lawful. This includes respecting the right of the child to be heard, to have access to information presented in an accessible manner, to have his or her needs assessed, etc.

A positive development in the Bulgarian court practice is the Decision in case No. 1464/2021, of the Sofia-city Administrative Court. The development of this case was monitored during our research. What arouses interest is that the court assessed the best interests of the child in the judicial phase of the procedure for granting international protection. In this case, following an individual assessment of the child's needs, the court found that solely the mother provided the child’s family environment. It was fully socially adapted in Bulgaria and his possible return to his country of origin would expose him to persecution. This is one of the few cases in which the elements of the best interests of the child are substantially taken into account, resulting in a lawful decision for the asylum seekers. Such decisions are rare and in practice, there are still a number of difficulties in safeguarding the best interests of refugee and migrant children. Nevertheless, it is evident that there are positive developments. However, it should be noted that the decision, in this case, has been appealed by the SAR and is subject to review. SAR's choice to appeal a court decision based entirely on a thorough assessment of the best interests of the child, when the agency itself did not make its own assessment of this child's best interests, could be seen as a controversial action on their part.

Challenges

The interview is of significant importance when establishing the necessary information about vulnerable persons. Challenges appear in relation to the lack of sufficient professional training for both the interviewers and the representatives of unaccompanied children. Pursuant to Article 25 of the LAR[2], an attorney should be appointed by the National Legal Aid Bureau, designated by the President of the Bureau or by a person authorized by him as a representative of the child. It is too early to assess whether this is a good practice. The Bulgarian Helsinki Committee (BHC) and UNHCR provide trainings to these attorneys. From our interview with a protection expert, we found that their work is more successful than the formal role of municipal officials who were appointed as representatives under the former amendments of the law.

It should be noted that the recent amendments to the LAR excluded the possibility for an adult accompanying a minor - seeking or granted international protection, and responsible for the minor by virtue of law or custom to be appointed as a representative of the child. On the one hand, this artificially restricts the circle of persons who have a bond with that child and could protect his or her interests in the procedure.  On the other hand, it is related to the abolition of the long-standing harmful practice of children being 'sewn up' to an adult with whom they have no connection but who arrives in the country at the same time.

Another difficulty is that the procedure for granting protection links the needs of the child to the needs of his or her parent or guardian, neglecting the factor of individual need for protection[3]. For example, when a joint application for international protection ( of the parent and the child) is rejected, children are automatically deprived of the possibility to be granted protection. UNICEF researchers argue that in most cases, children are subjected to abuse by those they trust. Therefore, it is not always in the child's best interests when their asylum story is fully identified with the story of their parents or guardians and to have their applications reviewed jointly within the procedure for international protection.

In this sense is the decision in the case of MKAH v. Switzerland[4], where it was found that the interests of the child must be considered individually from those of the parent. However, this does not always imply a disruption of the family unit, quite the contrary. In the mentioned case, as well as in the Bulgarian practice such as in Decision 3522/2015 of the Sofia City Court, the assessment of the best interests of the child leads to a decision that also grants the parents the right to remain within the State and to receive protection.

The assessment of BIC is considerably deteriorating for unaccompanied children. The refugee law system presumes that refugee children receive protection through their accompanying parents, ignoring the fact that thousands of them arrive without parents[5] (in Bulgaria - 1480 unaccompanied children have applied for international protection from 01.01.2021 to 30.08.2021, and another 799 for the entire year of 2020). The need for a representative in order to apply for protection, as well as the treatment of minors, according to the general criteria, limits their ability to enjoy the full catalogue of their rights when applying for international protection.

Since the refuge law system is constructed for adults, it does not always take into account the dangers that refugee children disproportionately face. It often does not take into consideration the particular situation of minors. For example, victims of crimes such as trafficking, abduction for the purpose of sale, forcing a person to sell drugs, genital mutilation, etc. are mostly children[6]. During armed conflicts, minors are also at higher risk of injury or recruitment. State authorities, and especially SAR, have not yet addressed in detail such additional risk factors to which refugee and migrant children are exposed, both before leaving their country of origin and en route if they do not receive timely protection.

In determining the best interests of the child in a particular case, the UN Committee on the Rights of the Child makes reference to other individualizing elements such as gender, maturity, experience, membership of a minority group, disability, social and cultural background. In this respect, when determining the best interests of the child within the international protection procedure in Bulgaria, each of these factors must be given special and individualized attention when assessing the best interests of the child.

In this context, the opportunity to hear the child, where applicable, in an age-appropriate manner is crucial. The opinions and wishes of the child must be at the core of the decisions that are taken.

Conclusions and recommendations

● Timely assistance - Timely identification means identification of children as such or, in particular, as unaccompanied children within a reasonable time frame. There is a need to reduce the time required to assess their applications and to shorten procedures as much as possible. This will allow children to receive the required protection and support in an expeditious manner in order to for them to be integrated. Furthermore, the procedure must be comprehensive and its substantial elements and procedural safeguards must not be neglected for the sake of speediness.

● Professional training and interdisciplinary approach - The level of training of the SAR staff is also of key importance, as they are often the first point of contact that should create an environment of trust. It is desirable that SAR and the State Agency for Child Protection (SACP) establish specific practices to recruit qualified and motivated staff as well as training schemes. This will ensure that those responsible for BIC assessment and childcare understand children’s needs and have the necessary skills to work with them in the most effective way[7]. According to Decision No. 4182 of 24 June 2021 of the Administrative Court - Sofia City, "[b]y finding that there is no risk to the minor child's safety in their country of origin, the authority has applied the law incorrectly". This indicates an incorrect assessment of the BIC and application of the law. Another major consideration is the interaction between institutions and organizations in order to guarantee the rights of unaccompanied foreign children. Due to the increasing number of unaccompanied children, we recommend that the appointed social workers should have a thorough knowledge of refugee law and child psychology in order to be able to carry out their duties as effectively as possible and that the reports written by them are not a mere formality.

● Child's best interests assessment processes - UNICEF recommends that, as far as it is possible, a multidisciplinary team of professionals should be involved in assessing the best interests of the child. The European Asylum Support Office (EASO)[8] practical guide on the best interests of the child in asylum procedures recommends that the assessment should never be carried out by one person alone, but rather by a multidisciplinary team of professionals, with expert opinion from a lawyer and a social worker. In these cases, it is important to avoid conflicts of interest and to have the final decision made by an unbiased party. Any decision on granting refugee status or subsidiary protection status must be based on an individual assessment[9]. Standard operating procedures should be established to ensure fairness, transparency and efficiency of the process[10]. These should unify the fragmented legal framework to make the process as efficient as possible.

● Compliance with international standards - Due to the difficult situation and the violence that the children may have experienced, it is extremely important that SAR representatives work with refugee children in a way that is consistent with all the latest recommendations made by international and non-governmental organizations such as UNICEF, UNHCR, etc. For expediency to be achieved in this process, the procedures must be adapted so as to obtain the most complete and reliable information about the child - their age, country of origin, accompanying persons, etc. In this regard, the provided information materials should be designed to meet the needs of the children with regard to their language, age, religion and national characteristics and should be delivered by a trained professional. The persons who will interview or work with the children must be able to establish contact and create an environment of trust in which the child feels safe and free to tell their story, share memories, violence suffered or seek help. A key point is the accessible explanation of the rights and possibilities that can be provided to the child.

● Support and professional requirements for the legal representative - While there is a legal framework that sets out the obligations of the legal representative as well as a registry, we recommend that more detailed regulations are put in place, explaining their role in the assessment of the BIC and to ensure better traceability of their activities. Children should receive targeted and effective assistance from their representatives according to their best interests in an environment of trust. The role of representatives is crucial because their professional help can reveal vulnerability or prevent the child from becoming a victim of abuse or exploitation. Representatives, together with state authorities, must be vigilant to any potential risks to the child.[11]

● Support from civil society and organisations - Our recommendation is also to involve local diasporas, clubs, training and professional organisations, religious communities and others in the process of integration of these children so as to create a sense of support for them. All methods of integration should be applied - from Bulgarian language training, through participation in interest clubs, to access to and involvement of administrative, medical and educational institutions. This process must be built in direct dialogue with the children in order to be as relevant and effective as possible.

The assessment of the best interests of the child should be an ongoing process, carried out with an interdisciplinary approach, involving all responsible institutions (the SAR, the Department for Child Protection, representatives and/or lawyers, social workers, psychologists). It is crucial to respect the child's right to freely express their views and to give these views due weight in all matters concerning them[12].

[1] The Convention on the Rights of the Child, adopted by the UN General Assembly on 20.11.1989, ratified by a decision of the Grand National Assembly on 11.04.1991 - State Gazette No. 32 of 23.04.1991, in force since 3.07.1991.

[2] This is an amendment in the Asylum and Refugees Act from October 2020.

[3] David B. Thronson, Kids Will Be Kids? Reconsidering Conceptions of Children's Rights Underlying Immigration Law, 63 Ohio St. L.J. 979 (2002). Available at: https://core.ac.uk/download/pdf/228468814.pdf

[4] A.M. (au nom de M.K.A.H.) c. Suisse, no 95/2019, UN Committee on the Rights of the Child (CRC), 6 October 2021

[5] Joyce K. Dalrymple, Seeking Asylum Alone: Using the Best Interests of the Child Principle to Protect Unaccompanied Minors, 26 B.C. Third World L.J. 131 (2006). Available at: https://lawdigitalcommons.bc.edu/twlj/vol26/iss1/9

[6] UNICEF, Report on Child Protection. Available at: https://www.unicef.org/protection

[7] UNHCR, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum, page 17

[8] EASO Practical Guide on the best interests of the child in asylum procedures.

[9] Court of Justice of the European Union (CJEU), Judgment of 25 January 2018, F, C-473/16, EU:C:2018:36, para. 41

[10] UNHCR, Guidelines on Determining the Best Interests of the Child, page 49

[11] EASO Practical Guide on the best interests of the child in asylum procedures, page 39

[12] Committee on the Rights of the Children. General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1 of the CRC), page 22

 

 

Тази статия е създадена в рамките на Проект „ActionR: Неформална обучителна програма за развитие на млади застъпници в бежанското и миграционното право“. Цялата отговорност за съдържанието на статията се носи от авторският екип и при никакви обстоятелства не може да се приема, че тази статия отразява официалното становище на Фондация за достъп до права - ФАР.