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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

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
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)


Main gaps challenges
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


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)


Challenges
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


Migration human rights principles
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


Migration human rights principles ii
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)


Migration human rights principles iii
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


Crc obligations
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


Migration control children s rights
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


Due process of law
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)


Migration related child detention
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 detention
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)


Detention as last resort
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 deportation
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)


Parents deportation and children rights
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 rights
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)


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 integration
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


Right to family life
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


Child birth registration
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)


Children left behind
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 root causes of migration
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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