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

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.

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

Challenges in assessing the best interests of the child during the procedure for granting international protection to children
22.04.2022
child interests, child protection, children's rights

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 1st 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 (SAR). 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.

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 Law on Asylum and Refugees (LAR), since October 2020, an attorney should be appointed as a representative of the child by the National Legal Aid Bureau. 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 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 abolishes the long-standing and harmful practice of children being 'sewn up' to an adult with whom they have no connection but who arrived 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[2]. 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 the case of MKAH v. Switzerland, 6 October 2021, the UN Committee on the Rights of the Child (CRC) 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, the assessment of the best interests of the child may lead to a decision that grants protection to the parents and the right to remain within the State.

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[3] (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 fully 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[4]. 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 CRC 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.

 

[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] 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

[3] 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

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

This article is an extract from an article created within the Informal Training Programme for the Development of Young Advocates in Refugee and Migration Law of the Foundation for Access to Rights - FAR in Bulgaria. It is based on the "action research" method. The authors are young trainees at FAR. To read the full article go here- https://farbg.eu/en/publications/actionr-best-interest-of-the-child

 

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