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Human Rights of Migrant Children

Human Rights of Migrant Children. Course on International Migration Law IOM-UNITAR New York, 14-16 June 2011 Pablo Ceriani Cernadas Coordinator Program Migration & Human Rights, National University of Lanús, Argentina Consultant UNICEF DPP. Children affected by migration.

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Human Rights of Migrant Children

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  1. Human Rights of Migrant Children Course on International Migration Law IOM-UNITAR New York, 14-16 June 2011 Pablo Ceriani Cernadas Coordinator Program Migration & Human Rights, National University of Lanús, Argentina Consultant UNICEF DPP

  2. Children 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)

  3. Main Gaps/Challenges • Human Rights within Migration Policies • Child Perspective in Migration Policies 2. Migrants within Childhood Policies Sources: Bhabha/UNICEF 2008; GMG, 2008; Special Rapporteur of HR of Migrants, 2009; UNICEF TACRO/UNLA, 2010

  4. 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)

  5. Challenges • 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

  6. Migration & Human 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

  7. Migration & 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)

  8. Migration & 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

  9. CRC Obligations • 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

  10. Migration Control & Children’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

  11. Due 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)

  12. 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)

  13. Alternatives 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)

  14. 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

  15. Child 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)

  16. 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

  17. Social 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, includingagainst 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)

  18. 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

  19. Social Rights & Integration • 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

  20. Right 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

  21. Child 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)

  22. 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)

  23. Children’s Rights and Root 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)

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