Human Rights of Human Rights of Migrant ChildrenMigrant ChildrenCourse on International Migration Law Course on International Migration Law

IOM-UNITARIOM-UNITARNew York, 14-16 June 2011New York, 14-16 June 2011

Pablo Ceriani CernadasPablo Ceriani CernadasCoordinator Program Migration & Human Rights, Coordinator Program Migration & Human Rights,

National University of Lanús, ArgentinaNational University of Lanús, ArgentinaConsultant UNICEF DPPConsultant UNICEF DPP

Children affected by migrationChildren affected by migration Child migrants with their parents

Regularly or Irregularly Unaccompanied and Separated Children

(GMG, 2008) Education and Employment Survival (conflicts; dire poverty) Family Reunification Victims of Exploitation (including trafficking)

Children Left Behind in country of origin Children born in destination (ius

soli/sanguinis)

Main Gaps/ChallengesMain Gaps/Challenges

1. Human Rights within Migration Policies

2. Child Perspective in Migration Policies

2. Migrants within Childhood Policies

Sources: Bhabha/UNICEF 2008; GMG, 2008; Sources: Bhabha/UNICEF 2008; GMG, 2008; Special Rapporteur of HR of Migrants, 2009; Special Rapporteur of HR of Migrants, 2009;

UNICEF TACRO/UNLA, 2010UNICEF TACRO/UNLA, 2010

Gaps Gaps Children perspective in Migration Policies

Approach through migration policies’ goals, rather than child protection;

Children First, Migrant Second (ILPA, UK, 2006) Children treated as adults: human rights abuses

CRC (1989-2011): world-wide improvements → Immigration Field?

Migrants in Childhood Policies (and related policies) CRC Universality and Non Discrimination Social Integration, right to development Long-term comprehensive, inclusive public policies

Lack of inter-institutional dialogues and policies (Childhood-Migration)

ChallengesChallenges Introducing International HR Standards

within public policies which impact child migrants Necessity of further theoretical and practical

developments Balance between Migration Control and HR,

including child perspective HR of children affected by migration of their

relatives (e.g., children left behind) Data and Indicators (HR’s based) Coherent, long-term approach to migration

Migration as a choice, not necessity (root causes) Intercultural Integration Policies

Migration & Migration & Human Rights PrinciplesHuman Rights Principles

Best Interest of the Child (CRC, art. 3) Every law, measure or decision which

impact directly and indirectly on children affected by migration

Non Discrimination (CRC, art. 2) Jus Cogens (IHR Court, AO No. 18, 2003) Migration and Grounds of discrimination

Nationality National Origin (e.g., nationality of parents) Migration Status (e.g., access to ESCR) Disability and Migration (e.g., regulation of

entrance and access to legal residence) Economic, Social Status

Migration & Migration & Human Rights Principles (II)Human Rights Principles (II)

Participation of Children In designing and implementing policies that

may affect them Children Migrants in destination countries

Integration Policies, Education, Intercultural Programs, Access to Health Care with cultural-sensitive approach; Xenophobia

Protection approach → migration policies E.g., Unaccompanied Children (CRC, art. 20)

Repatriation Deny of entry at borders

Deportation of parents ESCR in destination (other public policies)

Migration & Migration & Human Rights Principles (III)Human Rights Principles (III)

Pro Homine In each case: Applying the regulation most favorable for

the child's rights Law interpretation in his/her best interest

Progressiveness Migration Policies Approach?

Preventive and Punitive? Rights-Based Approach? Dynamism

International migration challenges in the current context Human Rights Treaties as “living instruments” (ECtHR)

Groups in a vulnerable situation (children, irregular migrants) Additional protection measures

Universality Back to 1948? Human Beings at the centre

CRC CRC ObligationsObligations Respect, Protect and Fulfill human rights of all

children within State jurisdiction Adopt Measures (CRC, art. 3.1, 3.2) Harmonize Legislation Design public policies (participatory processes) Produce data + distribution, access to

information Monitoring enforcement Access to Justice (+ due process) Training on rights-based approach, children

rights and gender perspective in public policies

Migration Control & Migration Control & Children’s RightsChildren’s Rights

Children Protection Approach? Childhood Protection Bodies Independent Monitoring Mechanisms Training on Children’s Rights Non Detention Non deportation as punishment

Unaccompanied: protection lens / vulnerability Accompanied: Responsibility for migration law

breach? Procedures: Child perspective? Building up indicators

Due Process of LawDue Process of Law CRC, art. 12 (right to be heard), 40 (due process) Procedures:

entry (in country of origin and at borders); residence authorization (and renewal); repatriation and deportation, including detention

Unaccompanied Children Guardian. Legal Representative. Free Legal Aid Effective Remedy. Access to Justice CRC Committee, General Comment No. 6, 2005 Best Interest Determination Procedure

Accompanied Children Participation in migration procedures which may affect

their rights (e.g., family or parents’ deportation)

Migration-related Child Detention

CRC, art. 37.b (arbitrary detention), 37.c (detention conditions) Best Interest of the Child Detention as the last resort

Children and detention: Criminalization

Principle of non criminalization MWC; Special Rapporteur, annual reports; GMG, 2008 ECJ, El Dridi v. Italy (April, 2011)

Detention as an interim measure Administrative or Judicial Procedure Non detention of children for migratory reasons

(CRC Committee, G.C. No. 6)

Never in their best interest (UN Special Rapporteur; UNICEF; ENOC;

STEPS-European Parliament; South African Constitutional Court)

Alternatives to DetentionAlternatives to Detention Alternative Measures

By Law and in practice Budget. Infrastructure Duty of justify properly non application of

alternative measures to detention Effective Remedy Reasons for detention?

Only migration status: discrimination?

Indicators on enforcement of alternative measures (quantitative/qualitative)

Detention as Last Resort Due Process (CRC, art. 37.d)

Judicial Control and Effective Remedy Free Legal Aid and Guardian Consular Assistance (Viena Convention on Consular

Relations; ICtHR, AO-16/99; ICJ, Avena Case Length of Detention

Shortest period of time, by law Place of Detention

Non prisons-like. Open Centers Detention Conditions

Separated from adults ESCR (health care, education –outside the center-) Childhood Protection Officers in charge (Protection for

Children, not prevention from them) ECHR, Case Mubilanzila v. Belgium, 2006

Indicators on the entire process of detention

Child Repatriation/DeportationChild Repatriation/Deportation Deportation? Voluntary Repatriation or Returning?

Ground: Best Interest of the Child Social Reintegration or Family Reunification (CRC

Committee, General Comment No. 6, 2005)

Best Interest Determination Procedure Policies in Countries of origin and destination UNHCR Guidelines on BID (2006); UNICEF-UNHCR-STC (2009) Due Process Safeguards Durable Solutions Effective achievement of the goal invoked (e.g., family unit)

Non Refoulement (Jus Cogens) Committee CRC, G. C. No. 6 → Social and Economic conditions

in country of origin Not Geographical limitation Indirect Removal (ECHR, T.I. v. UK, 2000; CAT, Com. 88/1997)

Parents’ Deportation and Children’ Rights

Impact on Children’s Rights CRC, art. 9.1: separation on his/her best interest Art. 9.2: right to participate Best Interest of the Child as Primary Consideration Right to Family Life

ICHR, Report on Human Rights of Asylum Seekers in Canadian System, 2000) Family Separation or Family Unite and Poverty? Also: Reunification after deportation (CRC, art. 9.4,

10) Prohibition of entry to the country of destination?

Third Alternative? regularization and family unit

Deportation of one parent Right of spouses to live in one particular country? See

ECHR, Omoregie v. Norway and Y v. Russia, 2008

Social RightsSocial Rights Non discrimination based in nationality, national

origin, and administrative status Non discrimination based in parents status (CRC,

art. 2.1, 2.2) ESCR Committee, General Comment 20 on Non

Discrimination, including against irregular migrants (2009)

European Council on Social Rights: FIDH v. France (Right to Health Care) DCI v. The Netherlands (Right to Housing)

Challenge: legislation, practices that deny/restrict access to social rights of child migrants UN Committees Recommendations (www.hrcam.org)

Social Rights (II)Social Rights (II) Right to an Adequate Standard of Living

(CRC, art. 27) Absent discussion: Child Development & ESCR

of migrants parents: child protection policy Negative Obligations? e.g. restriction in

access to an employment Positive Obligations? Assist parents (art. 27.3)

Regularization, access to legal residence through permanent ways: e.g., for family unit; job offer; social integration policy

Indicators on ESCR of migrants and children born to migrant parents

Social Rights & Social Rights & IntegrationIntegration Non discrimination (universality)

ESCR → key role for short and long term integration Impact on social cohesion and human development Myths about immigration and its impact

Intercultural public policies (multidirectional) Participation of children and adolescents health care; Sexual and reproductive rights; education;

communication (media)

Xenophobia: prevention, sanction, access to justice

Political Rights & Integration

Right to Family LifeRight to Family Life CRC art. 9: not separation from parents

(only in best interest of the child) CRC art. 10: facilitate family

reunification (positive, human and expeditious manner)

CRC, art. 16: Protection of Family Policies on:

Family Reunification Regularization Deportation/ Repatriation (CRC, G.C. 6)

Negative and Positive Obligations

Child Birth RegistrationChild Birth Registration Children born in destination countries

Right to birth registration Right to a name Right to a nationality

Impact of migration control measures Interamerican CHR, Case Yean and Bosico v.

Dominican Republic (2005) Committee CRC (General Comment No. 7,

2006 –Early Childhood; MWC, Concluding Observations)

Children Left Behind Public Policies

Social Rights Children Participation Protection Measures Gender Perspective

Reunification Policies in origin & destination Preventing Adolescents Irregular Migration Facilitating regular avenues for migration Remittances: Private Income Co-development Initiatives (not replacing

development and human rights obligations, neither international cooperation responsibilities)

Children’s Rights and Children’s Rights and Root Causes of MigrationRoot Causes of Migration

Fulfillment of CRC, CESCR, and other human rights instruments in countries of origin, including the right to human development

Duty-bearers Each State International Community Developed countries: cooperation and negative

obligations Right to not migrate: national, regional, and

global level (coherence and Shared Responsibility) Childhood and other policies which impact on

children’s rights (poverty, unemployment, gender inequity)