Unaccompanied minor

An unaccompanied minor is a child without the presence of a legal guardian.
The UN Committee on the Rights of the Child defines unaccompanied minors and unaccompanied children as those "who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so." The Committee defines separated children as those "who have been separated from both parents, or from their previous legal or customary primary care-giver, but not necessarily from other relatives. These may, therefore, include children accompanied by other adult family members."
The number of unaccompanied minors increased drastically from 16,067 to 68,541 during 2011 to 2014.

Immigration law

In immigration law unaccompanied minors, also known as separated children, are generally defined as foreign nationals or stateless persons below the age of 18, who arrive on the territory of a state unaccompanied by a responsible adult, and for as long as they are not effectively taken into care of such a person. It includes minors who are left unaccompanied after they entered the territory of state. A few countries have non-asylum procedures in place to adjudicate unaccompanied minor cases.

Rights of unaccompanied minors

Aftercare and youth support

Unaccompanied children who have had difficult experiences often continue to need support upon turning 18, when they might lose the right to certain supports, including:

a guardian or representative,
the right to accommodation in a special home or in a foster family,
child-specific social, economic and educational rights,
the individual may be detained if their immigration status has not been regularised or when they have been ordered to leave the country.

Supporting the individual's transition into adulthood and independent life means integrating care arrangements and services as soon as possible. Aftercare is a core component of a durable solution, especially for adolescents. Life projects and aftercare plans are useful tools. The aftercare services available for national children deprived of parental care can guide caseworkers and officers in planning the support for the child's transition into adulthood.
After-care support is offered to young adults ageing out of care up to the age of 21 or 25 in some European countries, including to unaccompanied asylum seeking children turning 18. Some countries extend the young person's stay in reception homes for children until appropriate accommodation is found.

Family reunification in the country of destination

is a core component of a durable solution for an unaccompanied child, wherever this is in the best interests of the child. Family reunification could take place in the country of destination or origin, or in a third country. Caseworkers and officers should inform unaccompanied children about the possibilities and procedures for family reunification. The child should have access to support when applying for family reunification.
As part of the best interests’ determination, caseworkers and officers assess if family reunification is in the best interests of the child. Preparation for and monitoring of a family reunification prevents and reduces emotional distress for the child. When family reunification would mean risks for the child, alternative care arrangements are considered and the best interests of the child to maintain family relations and active contact are assessed.
The child's rights to life, survival and safety outweighs the child's interests to reunite with the family in the country of origin. Family reunification cannot take place in the child's country of origin if the immigration authorities in the country of destination grant international protection to the child. In these cases, children have a right to family reunification in the country of destination or a third country. When the child's application for international protection is rejected, concerns about the child's safety can still rule out a return to the country of origin for family reunification. This might be because of a high level of general violence that pose risks to the child.

Right to consular assistance

Children who are outside of their country of residence have a right to assistance by embassies and consular offices representing their country. Consular staff can play an important role in supporting and assisting children abroad, establishing supportive contacts and referral, and mobilising help. Consular staff may contact central authorities or national contact points for technical advice in cases involving children. Under the 1963 Vienna Convention on Consular Relations of the United Nations, consular functions include helping and assisting nationals of the sending state. This could involve measures to safeguard the interests of children who are nationals of the sending State within the limits imposed by the laws and regulations of the receiving State, particularly when a guardian needs to be appointed. The authorities of the country of destination must inform the competent consular office without delay when the appointment of a guardian for a child is considered. The laws and regulations of the receiving State concerning the appointment of a guardian apply and are not affected by the information sharing with the relevant consular offices.

Resettlement and transfers

Resettlement and integration in a third country

When the best interests’ determination process concludes there is no durable solution for a child in the country of destination or origin, the possibility of resettlement to a third country is assessed. Resettlement might be an option when it enables safe family reunification in the resettlement country, or when it protects a child from refoulement or persecution or other serious human rights violations in the country of destination. This might be the case when a child victim of trafficking has to be protected from reprisals or renewed recruitment by traffickers. Unless it poses any risks to the child, the child’s parents need to be informed, consulted and heard in the assessment and resettlement process.
Before a decision on resettlement is taken, the best interests’ determination process considers the following, with reference to articles under the UN Convention on the Rights of the Child:

The duration of legal or other obstacles to a child's return to her or his home country;
The child's age, sex/gender, emotional state, educational and family background;
The child's right to preserve her or his identity, including nationality and name ;
The continuity in a child's upbringing and care, including with regard to the child's ethnic, religious, cultural and linguistic background ;
The right of the child to preserve her or his family relations and related short, mid- and long-term possibilities of family reunification either in the home, host or resettlement country.

When resettlement is explored for family reunification purposes, the child and the family member located in the third country need to consent and want to reunify. The child welfare or social services authorities in the country of resettlement make assessments and ensure service provision and monitoring after resettlement.
When resettlement is explored for other reasons, the assessments consider whether resettlement could pose any obstacles to family tracing, family reunification or maintaining family relations and contacts, including the distance between the place of resettlement and the child's family and the existing communication possibilities.

Transfers in Europe under the Dublin III Council Regulation

The Dublin III Council Regulation is an agreement among EU Member States, Iceland, Liechtenstein, Norway and Switzerland that regulates which country is responsible for examining a person's asylum application. It provides for the possibility to transfer persons to the responsible state. The Regulation assumes that the Common European Asylum System is in place and fully operational. Under this precondition, adults and children could be transferred to another participating State without compromising the right of the person to international protection with appropriate standards of reception and care. Transfer is only allowed when the first instance decision on the previous application has not yet been taken.
The Dublin III Council Regulation provides that the best interests of the child should be a primary consideration of Member States when applying the Regulation, in accordance with the Convention on the Rights of the Child and the Charter of Fundamental Rights of the European Union. The Regulation requires Member States that are assessing the best interests of the child to:

Take due account of the child's well-being, social development, safety and security, and background;
Take into account the views of the child in accordance with her or his age and maturity;
Develop specific procedural guarantees for unaccompanied children with due consideration to their particular vulnerability;
Cooperate closely between Member States for conducting best interests’ assessments under the Regulation.

The identification and location of family members can affect which Member State is responsible for processing the asylum application of an unaccompanied minor:

The Member State where a family member or a sibling of the child is legally present is responsible, provided that it is in the best interests of the child to have her or his application assessed in that state.
When a relative is legally present in another Member State, an assessment establishes if the relative can take care of the child. When that is possible, the child is united with the relative if this is in her or his best interests. That Member State becomes responsible.
When family members and relatives are in different Member States, the decision on which Member State is responsible is guided by the best interests of the child.
When family members or relatives cannot be identified, the Member State responsible shall be that where the unaccompanied child has lodged the asylum application, if this is in the best interests of the child.
Some discretion is allowed in this decision with the applicant's consent, including for family reunification for humanitarian or cultural reasons.

The process for determining the Member State responsible shall start as soon as an asylum application is lodged. Once a Member State receives a request to take charge of an applicant, the decision shall be taken within a period of two months. In particularly complex cases, this term may be extended by one additional month.
When requesting another state to take charge of or receive a person back, Member States gets written consent to transmit information about the applicant, including information about the immediate needs of the applicant and contact details of family members, relatives or other family relations in the Member State to which the persons is transferred. For children, this includes information about the child's education and age assessment. The applicant has a right to be informed about the data that is processed and is entitled to have the data corrected or erased when incomplete or incorrect. For unaccompanied children, caseworkers and officers ensure that the child receives support.
The applicant has the right to an effective remedy against decisions taken under the Regulation in the form of appeal or review, before a court or a tribunal, including the right to legal assistance and interpretation. The transfer is automatically suspended during the appeal or review of a decision, and the applicant has a right to remain in the Member State pending the outcome. The responsibility of the Member State ceases when there is evidence to ascertain that the person concerned has left the territory for at least three months. After this period, the person has to lodge a new application for asylum.